Citation: R v New [2022] NSWDC 753
Court: District Court of New South Wales
Date: 8 September 2022
Judge(s): O'Rourke SC DCJ
Background
The accused stood trial on an indictment containing two counts of sexual offences against two different complainants. The first count alleged sexual touching; the second alleged sexual intercourse without consent. A tendency witness, who was not the subject of any charge on the indictment, was also proposed to be called by the Crown.
The Crown served a tendency notice proposing to use the evidence of both complainants and the tendency witness as cross-admissible tendency evidence. The tendency alleged was that the accused had a pattern of intentionally touching the body of an unconscious female (unconscious through sleep, intoxication, or drug use) with his hands and/or penis. The accused was said to have been intimately involved with each complainant and the tendency witness in 2018 or 2019, when he was in his mid-to-late twenties and each woman was in her early twenties.
The defence opposed the admission of the tendency evidence and, contingent on it being excluded, sought separate trials on each count. The admissibility question therefore required determination before the trial commenced.
Legal Issues
- Whether the Crown had given sufficient notice of the tendency evidence under the Evidence Act 1995
- Whether the tendency evidence had "significant probative value" within the meaning of section 97 of the Evidence Act 1995
- Whether the probative value of the tendency evidence outweighed any danger of unfair prejudice to the accused under section 101(2) of the Evidence Act 1995
- Whether, given the ruling on tendency evidence, the severance application under section 21 of the Criminal Procedure Act 1986 required further consideration
Decision
Issue 1: Notice
The court was satisfied that proper notice of the tendency evidence had been served by the Crown (at [25]). This requirement was not in dispute.
Issue 2: Significant Probative Value
The court found that the proposed tendency evidence, taken at its highest, was capable of establishing a pattern of behaviour by the accused (at [40]). Common features across the three bodies of evidence included the accused sharing a bed with each complainant or tendency witness, each woman being unconscious or highly intoxicated, and each waking to find the accused touching or penetrating them sexually (at [41]-[42]). The court did not consider the 21-month timeframe across the allegations to be a sufficient temporal gap to diminish probative value (at [41]). The court concluded that the evidence had significant probative value for the purposes of section 97, finding that if accepted, it would significantly increase the probability that each complainant's allegation was true (at [43]).
Issue 3: Probative Value Versus Prejudicial Effect
The court acknowledged that tendency evidence of this kind carries inherent prejudice to an accused, particularly where it involves further allegations of non-consensual sexual contact (at [50]). However, the court determined that this prejudice did not outweigh the significant probative value of the evidence (at [52]). The court reasoned that it is not improper for a jury to reason that a demonstrated tendency makes the commission of the charged offences more likely; that is the very basis on which tendency evidence is admitted (at [49]). The court further found that appropriate jury directions could guard against impermissible uses of the evidence, including substituting one complainant's evidence as proof of another's count, and that juries are capable of following such directions (at [54]-[55]).
Issue 4: Severance
Having admitted the tendency evidence, the court determined there was no need to further consider the severance application (at [56]).
Orders Made
- Tendency evidence admitted: the Crown was permitted to rely upon tendency reasoning, with the evidence of all four complainants (two charged complainants plus one tendency witness, whose evidence across all relevant counts) cross-admissible on each count on the indictment.
Key Takeaways
- The District Court confirmed that tendency evidence in sexual assault proceedings does not require a striking pattern of similarity or conduct that is compellingly rare; it is sufficient that common features link the alleged conduct and support proof of the tendency (at [34]-[35]).
- Under sections 97 and 101 of the Evidence Act 1995, tendency evidence must have significant probative value and that value must outweigh the danger of unfair prejudice; the court assessed both elements separately and sequentially (at [23], [44]).
- Where multiple complainants allege sexual contact while unconscious in similar circumstances, those shared features can constitute the linking element required by R v Bauer [2018] HCA 40 to establish significant probative value (at [31], [40]-[43]).
- Inherent prejudice from tendency evidence does not automatically preclude admission; the court found that carefully framed jury directions can, in appropriate cases, adequately address the risk of impermissible reasoning (at [53]-[55]).
- A ruling permitting the Crown to rely on tendency evidence can resolve a severance application without further argument, where the cross-admissibility of the evidence is the central question underlying the joinder dispute (at [56]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Evidence Act 1995
Cases
- Allen v R [2020] NSWCCA 173
- Arravina v R [2015] NSCCA 288
- BC v R [2015] NSWCCA 327
- DAO v R [2011] NSWCCA 63
- Hughes v The Queen [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300
- McPhillamy v The Queen (2018) ALJR 1045
- R v Bauer [2018] HCA 40; 266 CLR 56
- R v Ford [2009] NSWCCA 306
- R v PWD [2010] NSWCCA 209
- Saoud v R [2014] NSWCCA 136
- Sokolowskyj v R [2014] NSWCCA 55