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Court of Criminal Appeal 8 November 2023

R v Zaidan

[2023] NSWCCA 277

Sexual offences
EVIDENCE TENDENCY EVIDENCE SIGNIFICANT PROBATIVE VALUE

Citation: R v Zaidan [2023] NSWCCA 277
Court: Court of Criminal Appeal
Date: 08 November 2023
Judge(s): Ward ACJ at [1]; Fagan J at [84]; Sweeney J at [105]

Background

The respondent faced a joint indictment of ten counts of child sexual offences. Three counts related to a male child (referred to as "A"), aged nine, alleging offences between late 1996 and early 1998. Seven counts related to a female child (referred to as "B"), aged 12 to 13, alleging offences between September 1998 and May 1999. All alleged conduct occurred at or near the respondent's shoe repair shop at Condell Park, NSW, when each child was alone with him.

The Crown served a tendency notice seeking to use the evidence of each complainant as tendency evidence in relation to the counts involving the other. The Crown identified four asserted tendencies: grooming children at his shop, sexually touching children aged 9 to 13 who visited him alone, engaging or attempting to engage in penetrative sexual intercourse with such children, and having a sexual interest in both male and female children aged 9 to 13.

A District Court judge dismissed the Crown's tendency application and, as a consequence, ordered that the joint indictment be severed and that each complainant's counts proceed to separate consecutive trials. The Director of Public Prosecutions appealed both rulings to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912 (NSW).

Legal Issues

  • Whether the tendency evidence (each complainant's evidence used in relation to the counts concerning the other) had "significant probative value" for the purposes of section 97(1)(b) of the Evidence Act 1995 (NSW), as it stood prior to the 2020 amendments
  • Whether, under section 101, the significant probative value of the tendency evidence substantially outweighed the danger of unfair prejudice to the respondent
  • Whether the trial judge's tendency ruling was correct, applying the Warren v Coombes correctness standard applicable to admissibility decisions on appeal
  • Whether the consequential separate trial ruling should stand if the tendency ruling was set aside

Decision

Ground 1: Whether the tendency evidence had significant probative value

Ward ACJ found that the tendency evidence had significant probative value. The respondent's alleged conduct towards both complainants shared important common features: grooming behaviour involving treats, offending in a private area of or adjacent to the shop, and, critically, an instance of actual or attempted anal penetration in relation to each complainant (at [76]). The Acting Chief Justice held that the evidence of the respondent's conduct towards "A" made it more likely that he would act on a similar sexual interest towards "B", and vice versa (at [76]).

The fact that the two complainants were of different genders and at different stages of puberty did not undermine the significant probative value of the tendency evidence (at [76]). Ward ACJ applied the High Court's reasoning in Hughes v The Queen, which confirmed that significant probative value does not require striking similarity, underlying unity, or a modus operandi (at [72]). It was sufficient that the evidence could rationally affect the assessment of whether the respondent had the relevant tendencies, and that those tendencies made the charged conduct more likely.

Fagan J added that evidence of a mature adult's sexual interest in children aged 9 to 13, and a willingness to act on that interest, is by common experience an out-of-the-ordinary phenomenon. Accordingly, proof that the respondent acted in that way towards one child of that age group could rationally affect the assessment of whether he would act similarly towards another child of similar age (at [93]). His Honour further observed that the circumstance that both complainants were unrelated strangers to the respondent who encountered him only through visits to his shop, and who were assaulted within or immediately adjacent to that shop, enhanced the probative value of the tendencies (at [95]-[96]).

Ground 2: Whether significant probative value substantially outweighed the danger of unfair prejudice

Ward ACJ held that the tendency evidence had significant probative value that substantially outweighed the manageable risk of prejudice (at [81]). The risk of unfair prejudice identified by the respondent was the inherent inculpatory nature of tendency evidence and the possibility that the stronger case involving "B" might unfairly bolster the case involving "A". The Acting Chief Justice considered that the mere fact that tendency evidence is inculpatory does not constitute unfair prejudice, and that appropriate jury directions would minimise any real risk (at [80]).

Fagan J, addressing the weight differential between the two bodies of evidence (more incidents involving "B" over a longer period), was satisfied that any risk of misuse by the jury could be averted by an appropriate direction and did not constitute prejudice outweighing probative value (at [103]).

Consequential separate trial ruling

Because the tendency evidence was admissible and cross-admissible, the basis for the separate trial ruling fell away. The Court set aside the severance order as a necessary consequence of allowing the tendency appeal (at [82]-[83]).

Orders Made

  • The appeal is allowed.
  • The rulings made by Williams SC DCJ on 18 August 2023 are vacated.
  • The tendency evidence the Crown intends to adduce pursuant to section 97(1) of the Evidence Act 1995 (NSW), as contained in the amended notice dated 30 January 2023, is admissible.
  • Counts 1 to 10 on the indictment are to be tried together.

Key Takeaways

  • Under the pre-2020 formulation of section 97 of the Evidence Act 1995 (NSW), tendency evidence in a child sexual assault prosecution does not require striking similarities or a shared modus operandi between the incidents relied upon. Significant probative value may be established where common features, such as grooming behaviour, location of offending, and the nature of the most serious acts, link the conduct across complainants (at [72], [76]).

  • A non-gender-specific sexual interest in children is capable of supporting cross-admissible tendency evidence between a male and a female complainant, provided the evidence relating to each complainant does not affirmatively suggest the accused's interest was confined to one gender (at [91]).

  • The shared circumstance that both complainants were strangers to the accused who encountered him only at his shop, and that all alleged assaults occurred in or immediately adjacent to that shop, is a factor that enhances the probative value of tendency evidence (at [95]-[96]).

  • The inherent inculpatory character of tendency evidence does not, of itself, amount to unfair prejudice for the purposes of section 101 of the Evidence Act 1995 (NSW). Where any residual risk of misuse can be addressed by appropriate jury directions, the probative value of the evidence is not outweighed (at [80]-[81]).

  • Applying the Warren v Coombes correctness standard, the Court of Criminal Appeal will re-evaluate a trial court's admissibility ruling on tendency evidence without deference to the first-instance decision, and will substitute its own conclusion where the ruling was incorrect (at [69]-[70]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61 M, 66A, 66C
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 97, 101
- Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)

Cases
- Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125
- Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- McPhillamy v The Queen [2018] HCA 52; (2018) 361 ALR 13
- R v Hughes [2015] NSWCCA 330
- R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75
- R v Lockyer (1996) 89 A Crim R 147
- R v Stevens [2011] NSWDC 81
- Stenner-Wall v R [2023] NSWCCA 163
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121
- Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9