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District Court 20 October 2020

R v SE

[2020] NSWDC 951

Sexual offences

Citation: R v SE [2020] NSWDC 951
Court: District Court of New South Wales
Date: 20 October 2020
Judge: Tupman DCJ

Background

The accused faced charges including sexual intercourse with a child under 10, sexually touching a child aged between 10 and 16, and indecent assault. The trial involved multiple complainants, including two sisters.

During the trial, the Crown sought a ruling on the admissibility of evidence from a neighbour, Ms Larritt, as tendency evidence. Ms Larritt had observed the accused at various social gatherings, including neighbourhood barbecues, where he interacted with children including the complainants and her own seven-year-old daughter.

Her evidence described the accused picking children up, placing them on his lap, dragging his hands over their groin regions, and sometimes grasping them to readjust their position. She also observed him kissing young girls on the forehead and cheeks, and noted that he would find reasons to remain inside with the children while adults were outside.

  • Whether Ms Larritt's observations of the accused's behaviour with children constituted admissible tendency evidence under s 97A of the Evidence Act 1995 (NSW)
  • Whether the presumption of significant probative value under s 97A(2) applied to the evidence
  • Whether the evidence should nonetheless be excluded under s 101 of the Evidence Act on the basis that the danger of unfair prejudice outweighed its probative value

Decision

Section 97A of the Evidence Act 1995, which came into force on 1 July 2020, introduced a presumption that tendency evidence establishing a sexual interest in children, or the acting upon such an interest, has significant probative value. The Court found that this provision deliberately excluded from consideration the very factors that courts had previously weighed under the common law and earlier tendency evidence jurisprudence, including the factors enumerated in High Court decisions such as Hughes v The Queen and The Queen v Dennis Bauer. Those factors, such as differences in circumstances, the absence of distinctive features, and the level of generality of the tendency alleged, are now listed in s 97A(5) and are generally precluded from the court's assessment unless exceptional circumstances exist.

Tupman DCJ acknowledged that Ms Larritt's evidence was capable of being interpreted as ordinary affectionate behaviour between an adult and children, particularly in the context of someone acting in a grandfather-like role. However, her Honour found the evidence was also capable of establishing the three tendencies the Crown relied upon: a sexual interest in young girls, a tendency to act on that interest by creating opportunities to be alone with them, and a tendency to act on it through physical affection such as kissing and cuddling. Given the operation of s 97A(2), the evidence was presumed to have significant probative value, and the Court was not satisfied that sufficient grounds existed to displace that presumption.

On the question of unfair prejudice under s 101, the Court found that the risk of the jury attributing an unwarranted sexual connotation to otherwise innocent behaviour did not rise to the level of unfair prejudice sufficient to warrant exclusion. Her Honour observed that the accused's representatives would have the opportunity to argue to the jury that the conduct described was consistent with normal human interaction, and that this was precisely the kind of evaluative exercise juries are empanelled to perform.

The Court ruled that paragraphs 7 to 11 of Ms Larritt's statement, relating to her observations of the accused's interactions with her own daughter, were admissible as tendency evidence, subject to the evidence being adduced in appropriate form.

Orders Made

• Evidence from paragraphs 7 to 11 of Ms Larritt's statement is allowed to be called in appropriate form to prove the tendencies asserted: a tendency for the accused to have a sexual interest in young girls, a tendency to act on that sexual interest by finding opportunities to be alone with young girls, and a tendency to act on that sexual interest by displaying affection in the form of kissing and cuddling those young girls.

Key Takeaways

  • Section 97A of the Evidence Act 1995 (NSW), in force from 1 July 2020, creates a presumption that tendency evidence establishing a sexual interest in children, or conduct acting on such an interest, has significant probative value in child sexual assault proceedings.
  • The District Court held that the factors courts previously applied when assessing probative value of tendency evidence, drawn from High Court decisions including The Queen v Dennis Bauer (2018) 266 CLR 56, are now expressly excluded from consideration by s 97A(5) except in exceptional circumstances.
  • Under s 97A(4), a court retains a residual power to find that tendency evidence does not have significant probative value, but must be satisfied there are sufficient grounds to do so, and cannot ordinarily rely on the s 97A(5) factors to reach that conclusion.
  • The exclusionary discretion in s 101 remains available: even where tendency evidence is presumed to have significant probative value, a court may still exclude it if the danger of unfair prejudice outweighs that probative value.
  • Observed conduct that is capable of innocent interpretation does not necessarily preclude admissibility as tendency evidence; the question of whether it carries a sexual connotation is a matter for the jury to determine.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97A, 97A(2), 97A(4), 97A(5), 97A(5)(g), 101

Cases
- HML v The Queen (2008) 235 CLR 334
- IMM v The Queen (2016) 257 CLR 300
- Hughes v The Queen (2017) 92 ALJR 52
- The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56