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District Court 5 November 2021

R v Young (a pseudonym)

[2021] NSWDC 622

Sexual offences
TRIAL APPLICATION

Citation: R v Young (a pseudonym) [2021] NSWDC 622
Court: District Court of New South Wales
Date: 5 November 2021
Judge: Haesler SC DCJ

Background

The accused faced four counts across two child complainants. The first two counts involved an act of indecency and sexual intercourse against the first complainant, alleged to have occurred in 1980–1981 and 1987–1988 respectively. The second two counts involved an act of indecency and sexual intercourse against the second complainant, alleged to have occurred in 2002 at Tamworth.

At a pre-trial hearing, the defence objected to the proposed tendency evidence. The Crown sought to use the evidence from each complainant as cross-admissible tendency evidence in the counts relating to the other complainant. The tendency was particularised in two ways: that the accused had a sexual interest in female children under 16, and that he had a tendency to act on that interest with female children in his care or under his authority.

The central dispute was whether the proposed tendency evidence should be admitted or excluded under the Evidence Act 1995, with particular focus on the recently enacted section 97A and its interaction with sections 97 and 101.

  • Whether the proposed tendency evidence met the threshold of "significant probative value" under section 97(1)(b) of the Evidence Act 1995.
  • Whether the probative value of the tendency evidence outweighed the danger of unfair prejudice to the accused under section 101(2).
  • Whether the accused had established "exceptional circumstances" under section 97A(5) sufficient to rebut the statutory presumption of significant probative value introduced by section 97A(2).
  • Whether the time gap between the two sets of alleged offences (over 20 years), the reporting delays (40 years and 18 years respectively), and the alleged vagueness of the complaints, individually or in combination, constituted exceptional circumstances.

Decision

The court applied the three-stage inquiry: whether the proposed evidence established a relevant tendency, whether it had significant probative value, and whether that probative value outweighed the danger of unfair prejudice. For tendency evidence to carry significant probative value, the judgment confirmed that there must generally be features linking the respective complaints, so as to demonstrate a tendency to act in a particular way. Common features increase the likelihood that the account under consideration is true and reinforce the alleged behaviour in relation to specific counts.

The court observed that, in 2020, the NSW Parliament enacted section 97A specifically to facilitate the greater admissibility of tendency evidence in child sexual assault proceedings. Under section 97A(2), a presumption arises that tendency evidence of the kind described in the section has significant probative value. That presumption can be rebutted, but section 97A(5) expressly directs courts to disregard, absent exceptional circumstances, matters such as the level of generality of the allegations, the period of time between the events, and delay in reporting. The threshold set by the provision was described in the second reading speech as a "high bar."

The defence submitted that exceptional circumstances existed because of the 20-plus-year gap between the two sets of alleged offences, the 40-year and 18-year delays before reporting, and the alleged vagueness of the complaints. The court rejected that submission. The District Court accepted that the delays were unusual but not extraordinary in this jurisdiction, and that the three matters raised by the defence were precisely the kind of matters that section 97A(5) directs a court to leave aside unless exceptional circumstances are shown.

The court noted that appropriate judicial directions under section 165B of the Evidence Act would be given to address any potential disadvantage to the accused, consistent with the approach endorsed in R v Bauer. Given the legislative framework and the similarities between the two sets of allegations, the court was not satisfied that exceptional circumstances existed that would permit departure from the statutory direction in section 97A.

Orders Made

• The application to exclude the proposed tendency evidence is refused.

Key Takeaways

  • Section 97A of the Evidence Act 1995 creates a rebuttable presumption that tendency evidence in child sexual assault proceedings has significant probative value, and sets a deliberately high bar for rebuttal.
  • Under section 97A(5), courts are expressly directed to disregard the level of generality of allegations, the period of time between events, and delay in reporting when assessing whether the presumption has been rebutted, unless the court is satisfied that exceptional circumstances exist in relation to those matters.
  • Delays of 40 years and 18 years between the alleged offences and their reporting to police were held to be unusual but not extraordinary in this jurisdiction, and insufficient to constitute exceptional circumstances under section 97A(5).
  • The combination of the factors raised by the defence, including the 20-plus-year gap between the two sets of alleged offending, the reporting delays, and the alleged vagueness of the complaints, did not individually or collectively satisfy the exceptional circumstances threshold.
  • Where tendency evidence is admitted, the potential for disadvantage to the accused is addressed through judicial directions, including those mandated by section 165B of the Evidence Act, rather than through exclusion of the evidence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 97A, 101, 137, 165B

Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Bauer (2018) 266 CLR 56; [2018] HCA 40
- Shamouil v R (2006) 66 NSWLR 228; [2006] NSWCCA 112