AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 12 June 2020

PQR v Director of Public Prosecutions (NSW)

[2020] NSWSC 731

Sexual offencesAssault & violence
CRIME APPEAL AND REVIEW ADMISSIBLE AS TENDENCY EVIDENCE ORDER REFUSING SEPARATE HEARINGS TENDENCY EVIDENCE CRIMINAL PROCEEDINGS

Citation: PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731
Court: Supreme Court of New South Wales
Date: 12 June 2020
Judge(s): Adamson J

Background

The applicant, a teenager at the time of the alleged offences, faced charges in the Children's Court involving three complainants. The charges arose from separate incidents: online communications with a water polo acquaintance, physical contact during water polo games, and conduct in a parked car near Bondi Beach. The Crown gave notice that it intended to rely on each complainant's evidence as tendency evidence on the charges involving the other two complainants.

The applicant brought a motion in the Children's Court seeking to exclude the tendency evidence and to have the three sets of charges heard separately. The magistrate ruled the tendency evidence admissible and refused the application for separate hearings. The applicant then sought leave to appeal to the Supreme Court under section 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), and alternatively sought prerogative relief under section 69 of the Supreme Court Act 1970 (NSW).

The applicant challenged the magistrate's reasoning on the tendency ruling and contended that the refusal of separate hearings was infected by legal error. The DPP opposed the application, contending that the grounds did not involve a question of law alone and that no jurisdictional error was established.

Legal Issues

  • Whether the grounds of appeal involved a "question of law alone" as required for leave under section 53(3)(b) of the Crimes (Appeal and Review) Act 2001.
  • Whether the magistrate gave adequate reasons for the tendency ruling under section 97 of the Evidence Act 1995 (NSW), specifically whether the two interrelated matters required to assess significant probative value were addressed.
  • Whether the magistrate failed to consider or apply section 101(2) of the Evidence Act, which requires that the probative value of tendency evidence substantially outweigh its prejudicial effect.
  • Whether any inadequacy of reasons constituted jurisdictional error sufficient to enliven the court's supervisory jurisdiction under section 69 of the Supreme Court Act.

Decision

Jurisdiction under section 53(3)(b):
The court confirmed that an interlocutory appeal under section 53(3)(b) requires the ground to involve a question of law alone, not merely a mixed question of fact and law (at [49]-[50]). Adamson J found that the applicant had failed to articulate any such question. The complaints about the adequacy of the magistrate's reasons were so closely bound up with the particular facts of the case that they could not be characterised as involving a question of law alone (at [70]). The court also noted that a prior decision treating section 53(3)(b) as equivalent to the broader section 5F of the Criminal Appeal Act 1912 was per incuriam on this point (at [62]).

Jurisdiction under section 69 (prerogative relief):
For section 69 relief to be available in respect of an interlocutory order, the applicant was required to establish jurisdictional error rather than mere error of law on the face of the record, which is confined to ultimate determinations (at [63]). The court held that inadequacy of reasons does not of itself constitute jurisdictional error, though reasons or inadequate reasons may reveal one (at [68]-[69]).

Ground 1: Adequacy of reasons on the section 97 tendency ruling:
Even considering the matter on the merits despite the jurisdictional difficulties, Adamson J found no relevant deficiency. The magistrate correctly identified the two interrelated matters for assessing significant probative value under section 97, and her reasons were sufficient to show she addressed each separately (at [72]-[73]). The court found it was open to the magistrate to conclude there was a high risk of detection when the alleged offending against Complainant C occurred in a public carpark, given the complainant's friends were nearby and the complainant became hysterical (at [75]). The magistrate's use of the word "predatory" to characterise the applicant's tendency was sufficient to demonstrate she had accepted the power disparity between the applicant and the complainants (at [80]).

Ground 2: Failure to address section 101(2):
The magistrate did not expressly state that the probative value of the evidence substantially outweighed its prejudicial effect, but the court found this omission was not jurisdictional error and did not involve a question of law alone (at [88]). In any event, Adamson J held that the only prejudice the applicant had identified did not arise from the admission of the evidence itself but from the refusal of separate hearings, and that prejudice was in any event neutralised by the Crown's undertaking to allow the applicant to choose whether to give evidence on each separate charge (at [90]). With no real prejudice to weigh against substantial probative value, any conclusion other than that probative value substantially outweighed prejudicial effect would have been legally unreasonable, and the magistrate must be taken to have reached that conclusion (at [89], [92]).

Ground 3: Separate hearings:
This ground depended on either of the first two grounds being made out, and as neither was established, it did not require separate consideration (at [94]).

Orders Made

  • The amended summons was dismissed.
  • The applicant was ordered to pay the first defendant's (DPP's) costs of the proceedings.

Key Takeaways

  • Under section 53(3)(b) of the Crimes (Appeal and Review) Act 2001, an interlocutory appeal from the Children's Court (or Local Court) to the Supreme Court requires the ground of appeal to involve a question of law alone. Complaints about inadequacy of reasons that are closely tied to the specific facts of a case are unlikely to meet that threshold (at [70]).

  • Inadequacy of reasons constitutes an error of law but does not, of itself, amount to jurisdictional error sufficient to ground prerogative relief under section 69 of the Supreme Court Act, although inadequate reasons may reveal a jurisdictional error (at [68]-[69]).

  • In assessing tendency evidence under section 97 of the Evidence Act, the two interrelated matters from Hughes v The Queen are the extent to which the evidence supports the tendency and the extent to which the tendency makes the facts of the charged offence more likely. A magistrate's reasons need not apply these criteria formulaically; language that captures the substance of each matter is sufficient (at [72]-[73], [80]).

  • Where the only prejudice a party identifies under section 101(2) does not arise from the admission of the evidence itself but from a procedural arrangement (such as a joint hearing), and that prejudice is separately addressed by a Crown undertaking, there may be nothing left to weigh against substantial probative value (at [90], [92]).

  • A prior Supreme Court decision treating applications under section 53(3)(b) of the Crimes (Appeal and Review) Act as equivalent to applications under section 5F of the Criminal Appeal Act 1912 was found to be per incuriam on the question of whether the ground must involve a question of law alone, given that section 5F contains no such limitation (at [62]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 53, 54
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 97, 101, 110
- Supreme Court Act 1970 (NSW), s 69

Cases
- Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
- D v Director of Public Prosecutions (NSW) - Sydney [2013] NSWSC 60
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- DSJ v R; NS v R [2014] NSWCCA 77
- Elias v DPP [2012] NSWCA 302; (2012) 222 A Crim R 286
- Health Care Complaints Commission v Beck [1999] NSWCA 236
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669; (2015) 256 A Crim R 447
- McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
- Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
- Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 250 A Crim R 154
- R v Bikic [2000] NSWCCA 106; (2000) 112 A Crim R 300
- R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56
- Russell v Scott [2017] NSWSC 1720
- Sasterawan v Morris [2008] NSWCA 70
- The Queen v Iorlano; Re Mullally; Ex parte Attorney-General (Cth) (1983) 151 CLR 678; [1983] HCA 43
- TR v Constable Cox [2020] NSWSC 389
- Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88