Citation: R v Rumsby (No 4) [2023] NSWSC 770
Court: Supreme Court of New South Wales
Date: 24 May 2023
Judge(s): R A Hulme AJ
Background
The accused stands charged with two counts: the attempted sexual assault of a woman (referred to as LS) and the murder of a second woman (Ms Bright). Both events occurred in the small township of Gulgong in 1998 and 1999, within a short distance of each other and approximately 14 months apart.
The Crown had already been permitted to rely on tendency and coincidence reasoning to support both counts, on the basis that the events were so similar it was highly improbable they were committed by different offenders. The earlier ruling on that issue is recorded in R v Rumsby (No 2) [2023] NSWSC 230.
In this separate pre-trial ruling, the defence sought to adduce tendency evidence concerning a third party, referred to only as "Witness X" due to a non-publication order. The defence proposed to use this evidence to challenge the Crown's coincidence reasoning and raise a reasonable doubt about who murdered Ms Bright.
Legal Issues
- Whether tendency evidence proposed by the defence concerning Witness X met the admissibility threshold of "significant probative value" under section 97 of the Evidence Act 1995 (NSW).
- Whether the "significant probative value" threshold operates differently when tendency evidence is adduced by an accused to raise a reasonably possible alternative inference, compared to when it is adduced by the prosecution to prove a fact in issue.
Decision
The defence sought to point to three matters concerning Witness X: his initial reluctance to provide a DNA sample; his presence in the general Gulgong area on the night of Ms Bright's murder; and evidence of a tendency to act on a sexual interest in women with whom he had little or no relationship, including stalking behaviour, drawn from his conduct toward a 34-year-old woman in Mudgee between July 1999 and March 2000. Witness X had pleaded guilty to a range of offences arising from that conduct in December 2000.
The Crown objected that the proposed tendency evidence lacked sufficient probative value. Hulme AJ acknowledged the weaknesses: the sexual interest asserted was broadly described and not unusual in itself; and the evidence of the tendency to act on it came from conduct directed at only one person. Against that, the conduct occurred on multiple occasions over a considerable period, and the more specific stalking and sexually inappropriate behaviour was said to be rather unusual.
His Honour held that the threshold for "significant probative value" differs markedly depending on who is tendering the tendency evidence. When the prosecution relies on such evidence, it must strongly support proof of a tendency, and that tendency must strongly support proof of a fact in issue, as stated in Hughes v The Queen (2017) 263 CLR 338. Defence tendency evidence, by contrast, is not tendered to prove a fact in issue but to establish a reasonably possible alternative to the Crown's case. Because the defence bears no burden of proof, the threshold is correspondingly lower.
Applying this lower standard and taking the evidence at its highest, Hulme AJ was satisfied the evidence possessed sufficient significant probative value. The evidence was ruled admissible.
Orders Made
• The evidence is admissible.
Key Takeaways
- The "significant probative value" threshold under section 97 of the Evidence Act 1995 (NSW) applies differently depending on whether tendency evidence is tendered by the prosecution or the defence.
- Where an accused tenders tendency evidence to raise a reasonably possible alternative to the Crown's case, the evidence need not strongly prove a tendency leading to a fact in issue. It need only tend to establish that an alternative inference is reasonably possible.
- Applying Hughes v The Queen, the prosecution's higher threshold (tendency strongly supports proof, and proof strongly supports the fact in issue) does not translate directly to defence tendency evidence, which serves a fundamentally different forensic purpose.
- Weaknesses in defence tendency evidence, including that it derived from conduct toward a single individual, do not automatically defeat admissibility when the evidence is assessed at its highest and the defence bears no burden of proof.
- In proceedings where coincidence reasoning is central to the Crown's case, a third party's demonstrated tendency to act in sexually inappropriate and stalking conduct may be capable of meeting the significant probative value threshold as part of a defence challenge to that reasoning.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 97
Cases
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- R v Rumsby (No 2) [2023] NSWSC 230