AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 26 June 2020

R v Williams (a pseudonym)

[2020] NSWDC 836

Sexual offences
CRIME CHILD SEXUAL ASSAULT SEXUAL INTERCOURSE PROPOSED JOINT TRIAL THREE COMPLAINANTS. EVIDENCE ADMISSIBILITY OF TENDENCY EVIDENCE TEMPORAL DIFFERENCE BETWEEN COUNTS

Citation: R v Williams (a pseudonym) [2020] NSWDC 836
Court: District Court of New South Wales
Date: 26 June 2020
Judge: Haesler SC DCJ

Background

The accused (referred to by the pseudonym Scott Williams) faced a 16-count indictment alleging sexual offences against three complainants spanning the period February 1990 to June 2007. The complainants were a younger brother (George, aged 14 in 1990), an unrelated girl (Susan, aged 14 in 1992), and another girl (Lisa, aged between 12 and 14 across a period ending in approximately 2007). The accused was aged 19 at the time of the earliest alleged offending.

The prosecution served a tendency notice proposing that the evidence of each complainant be admitted as tendency evidence and made cross-admissible in relation to the counts concerning the other complainants. The proposed tendency included a sexual interest in children aged 12 to 14, a pattern of exploiting or creating opportunities for alone time, threats to prevent disclosure, and a specific tendency toward forced anal intercourse with young people aged between 12 and 19.

The defence accepted that, taking the prosecution case at its highest, the evidence established a sexual interest in each individual complainant. However, the defence challenged the admissibility of two categories of tendency evidence set out in paragraphs (d) and (e) of the tendency notice, and separately applied for each complainant's counts to be tried separately.

  • Whether the proposed tendency evidence under paragraphs (d) and (e) of the tendency notice met the admissibility requirements under ss 55, 97, and 101 of the Evidence Act 1995 (NSW), specifically whether it had significant probative value substantially outweighing any prejudicial effect on the accused.
  • Whether the evidence of one complainant could be cross-admitted as tendency evidence in the counts relating to the other complainants, given differences in the complainants' genders, ages, and the substantial time gaps between the alleged offending.
  • Whether the accused was entitled to separate trials for the counts relating to each complainant, to avoid unfair prejudice from impermissible propensity reasoning by the jury.

Decision

Haesler SC DCJ applied the four-step admissibility framework under the Evidence Act 1995: relevance (s 55), establishment of a tendency (s 97), significant probative value (s 97(1)(b)), and whether probative value substantially outweighed prejudicial effect (s 101). His Honour noted that the critical word in assessing probative value is "could," focusing on the capability of the evidence rather than its assessed reliability, consistent with IMM v The Queen [2016] HCA 14 and Shamouil v R [2006] NSWCCA 112.

The court found that, taken at their highest, the accounts of all three complainants disclosed sufficient common features to establish the tendency alleged. These included the accused targeting children aged 12 to 14 with whom he had an established relationship, exploiting or creating opportunities for private access, and a specific pattern of progressing to forced anal intercourse. The court accepted that the mere commission of offences against one complainant would not ordinarily be significantly probative of offences against another, but that proof of broadly similar conduct across complainants could raise the probability that the accounts were true, consistent with The Queen v Bauer (a pseudonym) [2018] HCA 40.

On the question of prejudice, the court acknowledged that the tendency evidence carried a risk of propensity reasoning, emotional prejudice, and failure to consider each count separately. However, his Honour concluded these risks could be adequately managed through careful judicial directions. The directions would need to include specific instructions limiting the use of George's evidence to providing context for counts 1 and 3, and excluding from tendency use any evidence of a sexual interest in Lisa that arose after she turned 16.

The application for separate trials was refused. Because the tendency evidence from each complainant was found admissible and cross-admissible, there was no independent basis to require separate trials.

Orders Made

  • The tendency evidence under paragraphs (d) and (e) of the tendency notice was admitted, the court being satisfied its probative value substantially outweighs any prejudicial effect.
  • The jury is to be directed that evidence of one count, if accepted, may be used in proof of other counts for a tendency purpose in the manner specified in the Crown's tendency notice.
  • The jury is to be directed that evidence of uncharged acts relied upon to establish tendency, if accepted, may be used in proof of counts in the indictment for a tendency purpose.
  • The application for separate trials was refused.

Key Takeaways

  • Under ss 97 and 101 of the Evidence Act 1995, tendency evidence in a multi-complainant sexual assault trial is admissible where common features across complainants' accounts are sufficient to establish a tendency, and where the probative value of that evidence substantially outweighs its prejudicial effect on the accused.
  • Significant probative value does not require a formal modus operandi or underlying unity of conduct, though the extent and nature of similarities across the alleged offending remains a relevant consideration in the assessment.
  • Cross-admissibility of tendency evidence across counts relating to different complainants is not precluded merely because complainants are of different genders or because the alleged offending is separated by substantial periods of time, provided common features link the conduct sufficiently.
  • Where tendency evidence from each complainant is admitted and made cross-admissible, the District Court confirmed there is no separate basis for ordering trials by complainant, and the risk of propensity reasoning by the jury can be addressed through specific judicial directions rather than severance.
  • Judicial directions in cases of this kind must be tailored to the particular risks identified: the court here indicated that directions would need to confine the use of one complainant's evidence to contextual purposes only, and exclude post-16 conduct from tendency reasoning, reflecting the importance of precision in limiting directions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61D(1), 61E(1), 61I, 61J(1), 61M(1), 66C(1), 66C(2)
- Evidence Act 1995 (NSW), ss 55, 97, 101

Cases
- BC v R [2015] NSWCCA 327
- BC v R [2019] NSWCCA 111
- DJW v R [2015] NSWCCA 164
- DPP v RDT [2018] NSWCCA 293
- DS v R [2018] NSWCCA 195
- IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
- Lockyer v R (1996) 89 A Crim R 457
- McPhillamy v The Queen [2018] HCA 52
- RH v R [2014] NSWCCA 71
- Shamouil v R [2006] NSWCCA 112; (2006) 66 NSWLR 228
- SK v R [2011] NSWCCA 292
- TB v R [2019] NSWCCA 224
- The Queen v Bauer (a pseudonym) [2018] HCA 40