Citation: [2023] NSWDC 155
Court: District Court of New South Wales
Date: 01 May 2023
Judge(s): Abadee DCJ
Background
The accused faced an indictment containing 12 charges (including alternative charges) of indecent assault and sexual intercourse with a single complainant, his granddaughter. The alleged offending spanned from 1 January 2015 to 1 July 2019, during which the complainant was aged between 8 and 13. Six discrete episodes were alleged, almost all of which were said to have occurred in a bedroom at the accused's home.
The Crown sought to rely on tendency evidence, notifying the accused of its intention on 27 January 2023. The proposed tendency evidence consisted of the complainant's account of each charged sexual act, to be used as tendency evidence in relation to every other charged act. The Crown intended to establish the relevant tendencies primarily through electronically recorded police interviews with the complainant conducted in September 2019, January 2020, and September 2020.
The accused took a neutral position on the admissibility application, raising no objection.
Legal Issues
- Whether the proposed tendency evidence had significant probative value for the purposes of s 97(1)(b) of the Evidence Act 1995 (NSW), and was therefore admissible
- Whether the statutory presumption in s 97A(2) of the Evidence Act applied, given that the charges constituted child sexual offences under s 97A(6)
Decision
Issue 1: Applicability of s 97A
Section 97(1)(b) of the Evidence Act requires that tendency evidence not be admitted unless the court is satisfied it has significant probative value. However, because the charges constituted child sexual offences within the meaning of s 97A(6), the more specific provision in s 97A applied (at [2], [8]). Under s 97A(2), the court presumes that the tendency evidence has significant probative value, reversing the ordinary evaluative burden that would otherwise fall on the Crown (at [8]).
Issue 2: Whether the presumption was displaced
Section 97A(5) provides a mechanism by which the presumption of significant probative value may be displaced. Because the accused was neutral on the application, his counsel did not rely on any of the circumstances in s 97A(5), either individually or in combination, that might have displaced the presumption (at [9]). No basis therefore existed to find that the tendency evidence lacked significant probative value.
Issue 3: Admissibility
With the statutory presumption unrebutted and no challenge from the accused, the court ruled the tendency evidence admissible (at [10]).
Orders Made
- The tendency evidence is admissible (at [10]).
Key Takeaways
- Under s 97A(2) of the Evidence Act 1995 (NSW), where charges constitute child sexual offences within the meaning of s 97A(6), the court presumes that tendency evidence has significant probative value, satisfying the threshold in s 97(1)(b) without the Crown needing to affirmatively establish that value.
- The presumption of significant probative value under s 97A(2) is rebuttable: s 97A(5) provides circumstances that, individually or in combination, may displace it.
- Where the accused takes a neutral position on a tendency evidence application and does not invoke any of the s 97A(5) circumstances, the presumption in s 97A(2) remains intact and the evidence will ordinarily be admitted.
- The District Court confirmed that tendency evidence comprising each complainant's account of one charged act, tendered as tendency evidence in relation to all other charged acts involving the same complainant, is a permissible use of the tendency evidence regime in child sexual offence prosecutions.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 97, 97A
Cases
- Nil