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Supreme Court 16 March 2023

R v Rumsby (No 2)

[2023] NSWSC 230

Sexual offencesAssault & violenceHomicide
EVIDENCE PRETRIAL RULING TENDENCY AND COINCIDENCE EVIDENCE IDENTITY OF PERPETRATOR IN ISSUE “CLOSE SIMILARITY” NOT REQUIRED ADMISSIBLE

Citation: R v Rumsby (No 2) [2023] NSWSC 230
Court: Supreme Court of New South Wales
Date: 16 March 2023
Judge: R A Hulme AJ

Background

The accused faced two counts on an indictment: an alleged attempt to choke a young woman with intent to have sexual intercourse without her consent (Count 1), and the alleged murder of a teenage girl (Count 2). Both incidents were alleged to have occurred in the early hours of the morning in Gulgong, a small town of approximately 2,000 people, on 1 January 1998 and 27 February 1999 respectively. The locations of the two alleged attacks were approximately 500 metres apart.

The Crown's primary evidence included admissions made by the accused to undercover police officers in August 2020, which had been ruled admissible in a companion judgment. The accused's principal defence was that he was not the perpetrator of either attack. Certain features of the alleged attacks were also contested, particularly in relation to the murder count.

This pre-trial ruling addressed whether evidence relating to each count could be used to support the other (cross-admissibility), and whether evidence of an alleged sexual assault on a third complainant in November 2007 was also admissible as tendency evidence.

  • Whether the evidence concerning Count 1 (the alleged sexual assault) had significant probative value as tendency evidence in relation to Count 2 (the alleged murder), and vice versa, satisfying the threshold under ss 97(1)(b) and 98(1)(b) of the Evidence Act 1995 (NSW)
  • Whether the probative value of that cross-admissible evidence outweighed the danger of unfair prejudice, as required by s 101(2) of the Evidence Act
  • Whether evidence of an alleged sexual assault on a third complainant (QD) approximately eight years after the charged offences was admissible as tendency evidence in relation to either count
  • Whether coincidence reasoning was available in relation to Counts 1 and 2, given the asserted similarities between the two incidents
  • Whether the two counts should be severed for separate trials

Decision

Tendency and coincidence evidence: Counts 1 and 2

Hulme AJ found that the evidence relating to each count was cross-admissible as tendency evidence in relation to the other. The asserted tendency was that the accused had a tendency to attack young women alone in public places in Gulgong in the early hours of the morning, in circumstances involving physical violence and sexual motivation. His Honour applied the approach summarised by the High Court in TL v The King [2022] HCA 35, assessing probative value at its highest on the assumption the jury accepts the Crown case, without weighing reliability or credibility unless no rational jury could accept the evidence.

The court accepted that some features of the case, including the 14-month gap between the two alleged attacks, raised the question of remoteness in time. However, the grave nature of the alleged tendency, the small and specific location, the similarities in victim profile, the time of day, and the physical nature of the attacks together gave the evidence significant probative value. The court confirmed that "close similarity" between incidents is not a prerequisite, and that there was no circularity of reasoning in taking the accused's admissions into account when assessing probative value for tendency purposes.

Coincidence evidence

Hulme AJ was separately satisfied that the evidence met the threshold for coincidence reasoning under s 98. The similarities between the two incidents, including the location, the approximate time of day, the age and vulnerability of the victims, and the apparent sexual motivation, made it unlikely that the accused would be wrongly associated with both events if the jury accepted the Crown evidence. An alternative hypothesis raised by the defence (that the same unknown third party was responsible for both attacks) did not deprive the evidence of its cogent capacity to establish identity.

QD tendency evidence

The court rejected the Crown's reliance on the alleged 2007 sexual assault of QD. Those events occurred more than eight years after the charged offences and in a different location and context. Hulme AJ found that the evidence did not have significant probative value in relation to either count on the indictment, and ruled it inadmissible.

Unfair prejudice and severance

Having found that both tendency and coincidence evidence met the significant probative value threshold, the court was satisfied that any danger of unfair prejudice could be sufficiently addressed by appropriate jury directions. The application for severance of the two counts was refused, the parties having accepted that a successful tendency or coincidence ruling would necessarily defeat that application.

Orders Made

  • Evidence concerning Counts 1 and 2 is cross-admissible for tendency and coincidence reasoning
  • Evidence concerning the alleged attack on QD is inadmissible
  • Application for severance of the two counts is refused

Key Takeaways

  • Significant probative value for tendency and coincidence evidence does not require "close similarity" between incidents; a combination of shared features, including location, victim profile, time of day, and the nature of the conduct, can suffice when assessed collectively.
  • Under the framework confirmed in TL v The King [2022] HCA 35, courts assess the probative value of tendency and coincidence evidence at its highest, on the assumption the jury accepts the Crown evidence, without separately weighing credibility or reliability unless no rational jury could accept it.
  • Taking an accused's admissions into account when assessing the probative value of tendency evidence does not involve impermissible circularity of reasoning.
  • Where uncharged conduct is alleged to have occurred more than eight years after the offences charged, and in a materially different context, it may lack sufficient probative value to be admissible as tendency evidence, even if it involves similar conduct against a similar class of victim.
  • A successful pre-trial ruling admitting tendency or coincidence evidence will generally defeat any application to sever the counts to which that evidence relates.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 97, 98, 101

Cases
- TL v The King [2022] HCA 35; (2022) 96 ALJR 1072
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
- DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9
- R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487
- R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174
- Selby v R [2017] NSWCCA 40
- BQ v R [2023] NSWCCA 34
- Kanbut v R [2022] NSWCCA 259
- Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528
- Taylor v R [2020] NSWCCA 355
- Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371
- R v Rumsby [2023] NSWSC 229