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District Court 8 October 2020

R v NS

[2020] NSWDC 608

Sexual offences
CRIMINAL LAW EVIDENCE APPLICATION TO SEVER INDICTMENT TENDENCY AND COINCIDENCE

Citation: R v NS [2020] NSWDC 608
Court: District Court of New South Wales
Date: 8 October 2020
Judge: Smith SC, DCJ

Background

The accused had been tried in 2019 on an indictment containing 21 charges of sexual offences against two complainants, referred to as JU and KK. The trial judge directed a verdict on seven counts and the jury acquitted on a further four. The jury could not reach a verdict on the remaining 10 counts and was discharged, requiring a retrial on those counts.

Ahead of the retrial, listed to commence on 12 October 2020, the accused brought three interlocutory applications. The Crown had also served a tendency notice intending to rely on the evidence of both complainants and a third woman, Ms Skinner, as cross-admissible tendency evidence.

  • Whether the Crown's tendency notice should be struck out, and whether the tendency evidence met the threshold requirements under sections 97 and 101 of the Evidence Act 1995
  • Whether the indictment should be severed so that counts relating to each complainant were heard separately
  • Whether the complainants JU and KK should be compelled to give evidence at the retrial under section 306J of the Criminal Procedure Act 1986

Decision

Tendency evidence: The Court found the evidence referred to in the Crown's tendency notice satisfied section 97 of the Evidence Act 1995, subject to one amendment. The notice described a tendency to have a sexual interest in young girls and to act on it opportunistically, supported by evidence that acts occurred in the same house, involved girls trying to sleep, and consisted of touching under clothing. The Court identified sufficient common features to give the evidence significant probative value, notwithstanding differences such as Ms Skinner's age of 16 compared with the complainants who were around eight. However, the notice had to be amended to remove the reference to the complainants regarding the accused as "uncle," as Ms Skinner's statement contained no such connection.

On the question of unfair prejudice under section 101(2), the accused argued the two complainants' close relationship created a risk of contamination. The Court characterised this as an attack on probative value rather than a true unfair prejudice argument. Applying R v Bauer, the Court noted that unless the risk of contamination or collusion is so great that no jury could accept the evidence, credibility and reliability concerns do not reduce the evidence's probative value at the admissibility stage. The Court was not satisfied that any unfair prejudice outweighed the evidence's probative value.

Severance: Counsel for the accused conceded that the severance application depended on the tendency argument failing. Given the Court's ruling that the complainants' evidence would be cross-admissible, the Court was not satisfied it was in the interests of justice to try the counts relating to each complainant separately.

Compellability: The starting point under section 306J is that a complainant in a sexual offence retrial is not compellable to give further evidence unless the court is satisfied it is "necessary." Applying WX v R, the Court emphasised that "necessary" is a strong word, requiring more than convenience or reasonableness. The Court found that even setting aside questions about which portions of the original evidence would be admitted, the potential impact on JU of being required to return to give evidence outweighed any disadvantage to the accused from her absence. No submissions were made regarding KK, and the Court reached the same conclusion in respect of her.

Orders Made

  • The tendency notice dated 18 August 2020 was held admissible, subject to the Crown amending it to remove the reference to the complainants regarding the accused as "uncle"
  • The application to sever the indictment was dismissed
  • The application to compel JU and KK to give evidence under section 306J(1) was dismissed

Key Takeaways

  • Under sections 97 and 101 of the Evidence Act 1995, tendency evidence involving multiple complainants requires identifiable common features linking the alleged offending, though differences between incidents do not necessarily defeat admissibility where sufficient commonality exists.
  • Arguments that complainants' evidence may be contaminated by their relationship go to probative value rather than unfair prejudice under section 101(2); applying R v Bauer, such concerns are excluded from the admissibility assessment unless the risk of contamination or collusion is so overwhelming that no jury could accept the evidence.
  • Where tendency evidence renders the accounts of multiple complainants cross-admissible, severance of an indictment is unlikely to be ordered, as the evidence will be relevant across all counts in any event.
  • Section 306J of the Criminal Procedure Act 1986 creates a presumption that a complainant in a sexual offence retrial is not compellable; "necessary" in that provision is a high threshold, and potential disadvantage to an accused from a complainant's absence must be weighed against the likely impact on the complainant of being required to testify again.
  • The process of editing the record of a complainant's original evidence under section 306I should ordinarily occur before any compellability application under section 306J, as the scope of admitted evidence shapes whether further testimony is truly necessary.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), sections 97, 101, 137
- Criminal Procedure Act 1986 (NSW), sections 306I, 306J; Division 4, Part 5

Cases
- R v Bauer (2018) 266 CLR 56 (High Court)
- WX v R [2020] NSWCCA 142
- R v Markuleski (2001) 52 NSWLR 82
- Hogan v Australian Crime Commission (2010) 240 CLR 651
- BHP Billiton Ltd v Schultz (2004) 221 CLR 400