Citation: R v DAW (No. 2) [2021] NSWDC 6
Court: District Court of New South Wales
Date: 27 January 2021
Judge: Abadee DCJ
Background
The accused faced a criminal trial on an indictment containing multiple counts relating to historical child sexual offences against a complainant described as a female family member. By the time evidence was complete and the matter approached summing up, two procedural questions required resolution before the jury could be directed.
The first question arose because the Crown conceded that the jury should be directed to acquit on Count 5, an offence of maliciously inflicting actual bodily harm with intent to have sexual intercourse. Count 6, an assault occasioning actual bodily harm, had been pleaded as an alternative to Count 5 on the indictment. The Crown maintained that Count 6 should remain for the jury's consideration, while defence counsel argued it should also be withdrawn.
The second question concerned tendency evidence. The Crown sought to rely on both charged and uncharged sexual conduct as proof of the accused's tendency to have a sexual interest in the complainant and to act on that interest. The accused neither consented to nor opposed that application.
Legal Issues
- Whether the jury should be directed to acquit the accused on Count 6 (assault occasioning actual bodily harm) following the directed verdict of acquittal on Count 5, given that Count 6 was expressed as an alternative to Count 5 and both arose from the same alleged incident.
- Whether allowing Count 6 to remain before the jury would cause unfairness to the accused in the circumstances.
- Whether the Crown should be permitted to rely on charged and uncharged conduct as tendency evidence under s 97 of the Evidence Act 1995 (NSW), and whether that evidence had significant probative value as required by s 97(1)(b).
Decision
Count 6: No Case Submission
The court accepted that the complainant's evidence did not match the Crown's case statement, which had anticipated that the belt assault occurred during or immediately following sexual intercourse, prompted by the complainant's physical resistance. The complainant instead gave evidence that the assault occurred because she did not want to remain in the bedroom, without any contemporaneous sexual activity. Accordingly, the Crown conceded the directed acquittal on Count 5 was appropriate.
The court nonetheless rejected the no case submission on Count 6. The essential elements of assault occasioning actual bodily harm under s 59(1) of the Crimes Act do not include any mental element relating to sexual intent, unlike the s 61C(1)(a) offence. The complainant's evidence provided a clear evidential foundation for the assault itself, regardless of the precise circumstances in which it occurred. His Honour found no unfairness to the accused in leaving Count 6 with the jury, noting that evidence of the accused being thwarted in attempts to have sex remained relevant context, and that the defence retained the ability to argue doubt about whether the assault occurred at all.
Tendency Evidence
The Crown's tendency notice identified a tendency to have a sexual interest in the complainant and to act on that interest. The notice had been served out of time, but no objection was taken on that basis. The court applied the pre-2020 version of the Evidence Act, noting that the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) did not apply.
Drawing on the High Court's reasoning in R v Bauer (2018) 266 CLR 56 and IMM v The Queen (2016) 257 CLR 300, the court held that the uncharged sexual acts were admissible as tendency evidence. It was unnecessary for those acts to carry any special, particular, or unusual feature. Taken together with other evidence, they could assist the jury in establishing the accused's sexual attraction to the complainant and his willingness to act on it, thereby helping to eliminate doubts that might otherwise attach to the complainant's evidence of the charged acts. The court was satisfied the evidence met the threshold of significant probative value under s 97(1)(b).
Orders Made
• The tendency evidence is admissible
• The Court dispensed with the requirement under s 100 of the Evidence Act regarding service of the notice out of time
Key Takeaways
- The District Court confirmed that a directed verdict of acquittal on a primary count does not automatically require withdrawal of an alternative count, provided sufficient evidence independently supports the elements of that alternative charge.
- Where an alternative count does not require proof of the same mental element as the primary count, the accused's forensic position is not necessarily prejudiced by the primary count's removal, and no general unfairness arises from leaving the alternative to the jury.
- Under s 97(1)(b) of the Evidence Act 1995 (NSW) as it stood before the 2020 amendments, tendency evidence must have significant probative value; following IMM v The Queen, that requires the evidence to be influential in the fact-finding context, not merely marginally relevant.
- Applying R v Bauer, uncharged acts of sexual misconduct by an accused towards the same complainant can constitute admissible tendency evidence without needing to possess any special or unusual feature, provided they could assist the jury in assessing the accused's attraction and willingness to act on it.
- The expression of a tendency in broad terms in a tendency notice (here, "female family members") will be read down by the court to reflect the actual evidence adduced at trial.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 59, 61C
- Evidence Act 1995 (NSW), ss 97, 100, Dictionary
- Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)
Cases
- IMM v The Queen (2016) 257 CLR 300
- R v Bauer (2018) 266 CLR 56; [2018] HCA 40