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District Court 16 September 2022

R v Hansen

[2022] NSWDC 746

Sexual offences
CRIMINAL LAW EVIDENCE CASE MANAGEMENT ORDERS STATUTORY DISCLOSURE REQUIREMENTS APPLICATION TO EXCLUDE EVIDENCE RELEVANT CONSIDERATIONS

Citation: [2022] NSWDC 746
Court: District Court of New South Wales
Date: 16 September 2022
Judge: Coleman SC DCJ

Background

The accused faced four counts of sexual offending against a complainant who was aged 14 to 15 at the time of the alleged conduct in Tamworth in 2009. The charges included two counts of indecent assault, one count of sexual intercourse with a child in circumstances of aggravation, and one count of committing an act of indecency in circumstances of aggravation. The accused and complainant had known each other through a local musical society and a shared workplace.

The trial was originally listed to commence on 22 August 2022 before a jury in Tamworth. Shortly before that date, the Crown served additional evidence and a Tendency Notice that had not previously been disclosed or identified as tendency evidence. The defence objected to both, prompting a pre-trial hearing on the admissibility of that material.

The pre-trial hearing, originally estimated to take one day, extended until 8 September 2022 due to its complexity and various interruptions. The resulting delay meant the trial could not be completed within the Tamworth circuit and was vacated.

  • Whether the late-disclosed Crown evidence should be excluded under s 146 of the Criminal Procedure Act 1986 (NSW) and/or s 137 of the Evidence Act 1995 (NSW)
  • Whether the Crown's Tendency Notice, served on 24 August 2022, was served within a reasonable time and whether the evidence identified in it qualified as tendency evidence
  • Whether certain other items of evidence (the "lookout" and "taxi" incidents, a text message referencing the complainant's prior sexual experience, and a portion of the accused's police interview) were admissible
  • Whether the accused could rely on evidence of good character in a particular respect, namely the absence of any arrest or conviction for sexual offences

Decision

The court excluded the three items of late-disclosed Crown evidence: a statement from the complainant dated 24 August 2022, photographs of the complainant's mobile phone together with a video recording of the conversation in which those photographs were taken, and a statement from the investigating officer of the same date. The exclusion was ordered under s 146 of the Criminal Procedure Act and/or s 137 of the Evidence Act, with the court finding that the prejudice arising from the late disclosure outweighed the probative value and that the statutory disclosure obligations had not been complied with.

The court also rejected the Crown's Tendency Notice. The notice was served on 24 August 2022, shortly before a trial that had been listed since well before that date. The court found the notice was not served within a reasonable time as required by the rules, and that the evidence could not satisfy the requirements for tendency evidence under the Evidence Act and the applicable authorities.

Several other evidentiary rulings were made. Evidence of the "lookout" and "taxi" incidents was allowed, as was a text message in which the accused asked the complainant about his prior sexual experience. That text message was found potentially probative of sexual activity relevant to the charges. However, a portion of the accused's recorded police interview touching on assumptions about the complainant's sexuality was excluded.

On the good character application, the court ruled that evidence of the accused's absence of any arrest or conviction for sexual offences was admissible. The accused had one prior conviction for a mid-range prescribed concentration of alcohol (PCA) driving offence, but the court held, applying R v Steele [2021] NSWCCA 74, that this conviction was irrelevant to the particular respect in which good character was being claimed and did not preclude the evidence being led.

Orders Made

  • The following late-served evidence was excluded under s 146 of the Criminal Procedure Act and/or s 137 of the Evidence Act:
  • The statement of the complainant dated 24 August 2022
  • Photographs of the complainant's mobile phone and the video recording of the conversation with the investigating officer during which those photographs were taken
  • The statement of the investigating officer dated 24 August 2022
  • Evidence of the lookout incident and the taxi incident was allowed
  • Evidence of the complainant's prior sexual experience as described in the text message (paragraph 12 of the October 2019 statement) was allowed
  • A specific portion of the accused's recorded police interview and corresponding transcript relating to the complainant's sexuality was excluded
  • Evidence that the accused has no arrest or conviction for any sexual offence, including sexual offences involving children, was allowed as good character evidence in that particular respect

Key Takeaways

  • Under s 146 of the Criminal Procedure Act 1986 (NSW), courts retain a discretion to exclude evidence served in breach of statutory disclosure obligations, with prejudice to the accused a significant consideration in that assessment.
  • A Tendency Notice served immediately before trial may be rejected on the basis that it was not served within a reasonable time, even where the underlying events were known to the prosecution well in advance.
  • Applying R v Steele [2021] NSWCCA 74, a prior conviction unrelated to the particular character trait claimed does not necessarily prevent an accused from leading good character evidence in that specific respect.
  • The District Court's pre-trial rulings here illustrate that late Crown disclosure can have significant practical consequences, including the exclusion of potentially probative evidence and the dislocation of the entire trial listing.
  • Contextual or background evidence, such as the lookout and taxi incidents, may still be admitted where it bears on the circumstances surrounding the alleged offending, even where other Crown evidence is excluded.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 134, 140, 141, 142, 143, 144, 146, 148, 294CB
- Evidence Act 1995 (NSW), ss 137, 192A

Cases:
- R v Al Batat & Ors (No 6) [2020] NSWSC 1079
- R v Rice (No 4) [2014] NSWSC 1525
- R v Sharpe (No 2) [2021] NSWSC 22
- R v Steele [2021] NSWCCA 74