Citation: Zaidan v R [2023] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 8 November 2023
Judge(s): Ward ACJ; Fagan J; Sweeney J
Background
The respondent faced a joint indictment of ten counts of child sexual offences. Three counts related to a nine-year-old male child ("A") and alleged offending between late 1996 and early 1998. Seven counts related to a female child ("B"), aged twelve to thirteen, and alleged offending between September 1998 and May 1999. All alleged conduct occurred at or near the respondent's shoe repair shop at Condell Park, NSW.
The Crown served a tendency notice seeking to use the complainants' evidence cross-admissibly. The four tendencies alleged were: grooming children who visited the shop through treats and gifts; sexually touching or fondling children aged nine to thirteen when alone with them at the shop; engaging or attempting to engage in penetrative sexual intercourse with children in that age range; and having a sexual interest in both male and female children aged nine to thirteen.
At a pre-trial hearing in August 2023, the trial judge dismissed the Crown's tendency application and consequently ordered that the joint indictment be severed, with separate trials for each complainant to run consecutively from January 2024. The Director of Public Prosecutions appealed both rulings under section 5F of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether the trial judge erred in finding that the tendency evidence did not have "significant probative value" within the meaning of section 97 of the Evidence Act 1995 (NSW)
- Whether the trial judge erred in finding that the probative value of the tendency evidence did not substantially outweigh the danger of unfair prejudice under section 101 of the Evidence Act 1995 (NSW)
- Whether, as a consequence of those findings, the severance order should stand
Decision
The Court of Criminal Appeal upheld the appeal unanimously. Ward ACJ (with Fagan and Sweeney JJ agreeing) held that the tendency evidence possessed significant probative value in establishing both a tendency to have a sexual interest in underage children and a tendency to act upon that interest in the specific ways alleged. The Court found the trial judge had fallen into error on both questions.
The Court emphasised two features as particularly important to the probative value assessment. First, the alleged conduct against both complainants included actual or attempted anal penetration, a notably specific form of conduct present in both complainants' accounts. Second, the grooming behaviour directed at children who visited the shop was consistent across both accounts. Together, these features gave the cross-admissible evidence substantial weight.
On the question of unfair prejudice, the Court found that the respondent had pointed only to the inherent risk that accompanies all tendency evidence, including the possibility that the stronger case involving "B" might unfairly bolster the case involving "A." The Court held that this kind of risk did not constitute unfair prejudice and that appropriate jury directions from the trial judge could adequately manage it. The mere fact that tendency evidence is inculpatory does not make it unfairly prejudicial.
The Court also noted that the fact the complainants were of different genders and at different developmental stages did not undermine the tendency conclusion. Having a sexual interest in children, and acting upon it, was itself a specific and identifiable tendency. The Crown case against each complainant depended critically on a single witness testifying to events approximately 25 years prior, and the exclusion of the tendency evidence would significantly weaken the prosecution.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed that tendency evidence can have significant probative value even where the complainants are of different genders and different ages, provided the specific conduct alleged is sufficiently similar across both accounts.
- A particularly specific form of alleged conduct, such as actual or attempted anal penetration appearing in the accounts of both complainants, is capable of substantially elevating the probative value of tendency evidence.
- Under section 101 of the Evidence Act 1995 (NSW), the inherent inculpatory nature of tendency evidence does not itself constitute "unfair prejudice." The risk of misuse must be assessed against the probative value, and appropriate jury directions are a relevant factor in that assessment.
- Where a Crown case depends entirely on a single witness for each complainant, and those witnesses are testifying to events from decades earlier, tendency evidence capable of supporting each account carries particular weight in the probative value analysis.
- Severance of a joint indictment will not be warranted where properly admissible tendency evidence provides a legitimate basis for a joint trial, and ordering severance as a consequence of incorrectly excluding tendency evidence will itself be an error.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M, 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
- 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
- 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