Citation: R v IW [2021] NSWDC 789
Court: District Court of New South Wales
Date: 16 November 2021
Judge(s): Grant DCJ
Background
The accused faced a six-count indictment alleging acts of buggery, or attempted buggery, committed against four complainant brothers between 1 January 1967 and 31 December 1969. The alleged offending took place on a sheep and cattle station in New South Wales. The complainants are brothers who visited their grandparents' property, where the accused also had a family connection through a remarriage.
The allegations involved the accused committing anal intercourse on each complainant in isolated locations on the property, including a caravan, a donkey room, a dam, and a bath. The complainants were young children at the time. The accused was himself a juvenile during the relevant period, and for at least one of the alleged incidents he was under the age of 14.
The Crown filed a tendency notice seeking to establish that the accused had a sexual interest in young male children under his care and supervision and acted on that interest. A contested preliminary question arose as to whether section 97A of the Evidence Act 1995 (NSW) applied to conduct that no longer constitutes a criminal offence, and how the doli incapax presumption affected the admissibility of an uncharged act.
Legal Issues
- Whether section 97A of the Evidence Act 1995 (NSW) applies where the tendency evidence relates to conduct (buggery) that has since ceased to be a criminal offence in New South Wales
- Whether the tendency evidence had significant probative value under sections 97(1) and 97A
- Whether the probative value of the tendency evidence outweighed the danger of unfair prejudice under section 137
- Whether an uncharged act allegedly committed when the accused was under 14 years of age was admissible as tendency and/or context evidence, given the doli incapax presumption
Decision
Grant DCJ considered whether section 97A applied to conduct that was an offence when committed but is no longer an offence. The court concluded that section 97A did apply in these circumstances. Buggery was a recognised child sexual offence at the time of the alleged acts, and the provision was not confined to conduct that remains an offence at the time of trial. The court was therefore able to apply the statutory presumption of significant probative value to the tendency evidence.
On the question of probative value, the court found that the evidence of each complainant, describing anal intercourse committed by the accused when alone with a young male child, carried a high degree of probative value. The court was not satisfied that any of the statutory grounds under section 97A(5) were established to rebut the presumption, nor that exceptional circumstances existed. The court also concluded that the probative value of the evidence outweighed the danger of unfair prejudice to the accused under section 137.
The court drew a distinction between the formal tendency the Crown had articulated (involving care and supervision) and the underlying pattern actually supported by the evidence. The court reformulated the tendency as an inclination to engage in anal intercourse with children younger than the accused when alone with them, describing the alleged behaviour as opportunistic. The evidence by itself, or taken together, strongly supported proof of that tendency, which in turn strongly supported proof of the charged offences.
On the uncharged act, the court accepted that the doli incapax presumption applied because the accused was under 14 at the time. The Crown had no available evidence to rebut that presumption. The court excluded the uncharged act pursuant to section 137, finding that its admission would create a danger of unfair prejudice, including the risk of a trial within a trial to address the presumption.
Orders Made
• Tendency evidence admitted as having significant probative value and probative value outweighs danger of unfair prejudice
• Uncharged act evidence excluded pursuant to s 137 due to danger of unfair prejudice and presumption of doli incapax
Key Takeaways
- Section 97A of the Evidence Act 1995 (NSW) applies to tendency evidence relating to conduct that constituted a child sexual offence at the time it was allegedly committed, even if that conduct has since ceased to be a criminal offence under New South Wales law.
- Under section 97A, there is a presumption that tendency evidence about a defendant's sexual interest in children, or conduct acting on such an interest, has significant probative value. That presumption can only be displaced if the court is satisfied there are sufficient grounds, and the listed factors in section 97A(5) are generally excluded from consideration unless exceptional circumstances apply.
- Where the Crown's formulation of a tendency does not precisely match the evidence, the court may identify the tendency that the evidence actually supports. Here, the District Court framed the relevant tendency as an inclination to engage in anal intercourse with younger children when alone with them, rather than relying strictly on the care and supervision framing in the Crown's notice.
- Uncharged acts allegedly committed when the accused was under 14 years of age attract the doli incapax presumption. Where the prosecution cannot rebut that presumption, the court may exclude such evidence under section 137 on the basis that admission would create unfair prejudice, including the prospect of a collateral inquiry within the trial.
- A court assessing tendency evidence in multi-complainant historical child sexual offending may find that the combined accounts strongly support proof of the tendency, and that the tendency in turn strongly supports proof of each charged offence, even where the alleged acts occurred across different locations and complainants.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 97, 97A, 101, 137
- Crimes Act 1900 (NSW)
- Crimes (Amendment) Act 1984 (NSW)
Cases:
- The Queen v Bauer [2018] HCA 40