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District Court 2 October 2020

R v CP (No 2)

[2020] NSWDC 585

Sexual offences
SECTION 293 CRIMINAL PROCEDURE ACT 1986 UNCHARGED ACTS EXCEPTION UNDER SECTION 293(3)

Citation: R v CP (No 2) [2020] NSWDC 585
Court: District Court of New South Wales
Date: 2 October 2020
Judge: Judge Weinstein SC

Background

The accused (referred to as CP) faced charges relating to alleged sexual offences against his biological sister, the complainant. In an earlier judgment delivered on 12 June 2020 (R v CP [2020] NSWDC 294), the court had admitted certain evidence for tendency purposes, finding it relevant and of significant probative value on the central question of whether the accused had engaged in sexual conduct with his sister.

A further question then arose: whether that same tendency evidence could be adduced by the Crown in light of section 293 of the Criminal Procedure Act 1986 (NSW). Section 293 generally prohibits evidence that discloses or implies that a complainant has or may have had sexual experience or taken part in sexual activity.

The Crown sought to rely on one of two exceptions in section 293(4): either that the evidence formed part of a "connected set of circumstances" in which the alleged offence was committed (s 293(4)(a)), or that it related to a "relationship" that was existing or recent at the time of the alleged offence between the accused and the complainant (s 293(4)(b)).

  • Whether the tendency evidence satisfied the "connected set of circumstances" exception under section 293(4)(a)(ii) of the Criminal Procedure Act 1986 (NSW)
  • Whether the biological sibling relationship between the accused and complainant, combined with an alleged pattern of sexual conduct, constituted a "relationship" for the purposes of the section 293(4)(b) exception
  • Whether the probative value of the evidence outweighed any distress, humiliation or embarrassment the complainant might suffer if the evidence were admitted

Decision

On the first exception (s 293(4)(a)(ii)), the court rejected the Crown's submission. The Crown pointed to several similarities between the tendency incident and the charged offence: both occurred in the family home, in a bedroom used by the children, when the accused and complainant were alone, and both commenced with the accused rubbing a part of the complainant's body. The court found, however, that these similarities were merely idiosyncratic features and did not amount to a "connected set of circumstances" as required. Relying on GEH v R [2012] NSWCCA 150 and BG v R [2010] NSWCCA 301, the court confirmed that apparent factual similarities between events do not, of themselves, establish that those events form part of a connected set of circumstances.

On the second exception (s 293(4)(b)), the court found in the Crown's favour. The court held that the relationship between a biological brother and his sister, in circumstances where he is alleged to have sexually abused her, falls within the meaning of "relationship" in the exception. Drawing on R v Beserick (1993) 30 NSWLR 510, the court noted that a "relationship" for these purposes can extend to one defined by a guilty passion rather than any emotional connection. The court also applied the principle, confirmed in multiple authorities, that the exceptions in section 293(4) should be construed broadly where the evidence is otherwise relevant.

On the probative value requirement, the court found that the probative value of the evidence clearly outweighed any distress, humiliation or embarrassment the complainant might suffer from its admission. This conclusion was consistent with the court's earlier tendency ruling, and the accused raised no contrary argument. The Crown's application to adduce the tendency evidence was accordingly allowed.

Orders Made

• The Crown's application to adduce the proposed evidence is allowed.

Key Takeaways

  • The District Court confirmed that factual similarities between a tendency incident and a charged offence do not, without more, establish a "connected set of circumstances" under section 293(4)(a)(ii) of the Criminal Procedure Act 1986 (NSW).
  • Under section 293(4)(b), the term "relationship" is broad enough to encompass the connection between a biological sibling and the child he is alleged to have sexually abused, even where no emotional bond exists beyond what the court described as a "guilty passion."
  • Authorities including R v Beserick (1993) and Taylor v R [2009] NSWCCA 180 support a broad construction of the exceptions in section 293(4), particularly where the evidence in question is otherwise relevant to a principal fact in issue.
  • The probative value assessment under section 293(4)(b) is distinct from the tendency evidence admissibility analysis under the Evidence Act, but findings made in an earlier tendency ruling may inform the court's assessment at the section 293 stage.
  • Sufficient connection between the accused and complainant can be established through a biological relationship combined with an alleged ongoing pattern of sexual conduct, even where a formal or socially recognised relationship in the conventional sense may be absent.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 293

Cases
- R v CP [2020] NSWDC 294
- Decision restricted [2020] NSWCCA 115
- BG v R [2010] NSWCCA 301
- GEH v R [2012] NSWCCA 150
- R v Edwards [2015] NSWCCA 24
- Taylor v R [2009] NSWCCA 180
- R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419
- R v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526
- R v McGarvey (1987) 10 NSWLR 632
- Dimian v R (1995) 83 A Crim R 358
- Re Dingjan; Ex parte Wagner (1995) 183 CLR 323
- PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 69 ALJR 829
- Ex parte Cook (1996) 70 ALJR 550