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Court of Criminal Appeal 6 May 2024

Davidson (a pseudonym) v R

[2024] NSWCCA 60

Sexual offences

Citation: Davidson (a pseudonym) v R [2024] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 6 May 2024
Judges: Adamson JA (primary judgment); Stern JA and Wright J (agreeing)

Background

The applicant was convicted following a jury trial of two counts of sexual intercourse with a child aged between 14 and 16 years in circumstances of aggravation under s 66C(4) of the Crimes Act 1900 (NSW). The complainant was his niece by marriage, a ward of the State who had been living in his household for nearly two years. She alleged that when she was 15 years old, he digitally penetrated her on two occasions: once in the loungeroom and once in her bedroom.

At trial, the Crown tendered tendency evidence in the form of sexually explicit text messages the applicant had sent to his stepdaughter in 2016 and 2017, when she was 16 to 17 years old and living in the same household. The messages suggested he wanted to touch her, requested naked photographs, and contained admissions of sexual interest in her. The Crown's purpose was to establish that the applicant had a tendency to have a sexual interest in teenage girls aged 15 to 17 who had a familial (but non-biological) relationship with him, were living with him, and were under his authority.

The applicant sought leave to appeal on the sole ground that this tendency evidence was wrongly admitted and caused the trial to miscarry. The appeal raised questions about the operation of s 97A of the Evidence Act 1995 (NSW), a relatively new provision dealing with tendency evidence concerning a defendant's sexual interest in children.

  • Whether the tendency evidence was relevant under s 55 of the Evidence Act, given that it concerned conduct towards a different person from the complainant
  • Whether the presumption under s 97A(2) that such tendency evidence has significant probative value was rebutted under s 97A(4), particularly because the evidence came from a single witness and the conduct differed in character from the alleged offending
  • Whether the probative value of the tendency evidence was outweighed by the danger of unfair prejudice to the applicant under s 101 of the Evidence Act, and whether the trial judge's directions adequately addressed that danger

Decision

Relevance. The Court held that the tendency evidence was relevant. The stepdaughter and the complainant shared material characteristics: both were aged 15 to 17, both were non-biological daughters residing in the applicant's home, and both were under his care and authority. Evidence of the applicant's sexual interest in the stepdaughter could rationally affect the probability that he had a sexual interest in the complainant and thereby committed the charged acts. The Court confirmed that tendency evidence need not involve conduct towards more than one child, and that a broadly framed tendency is not irrelevant, though its generality may bear on probative weight.

Rebutting the s 97A(2) presumption. Under s 97A(2), tendency evidence about a defendant's sexual interest in children is presumed to have significant probative value, even where the defendant has not acted on that interest. The Court held that there were no sufficient grounds under s 97A(4) to rebut the presumption. The fact that the tendency evidence derived from a single witness and concerned only one other person did not constitute sufficient grounds. Further, under s 97A(5), the difference in the nature of the conduct, being opportunistic digital penetration of the complainant compared to sending sexual text messages to the stepdaughter, could not be taken into account when assessing whether the presumption was rebutted.

Unfair prejudice under s 101. The Court identified the relevant danger as the risk that the jury might treat the applicant as a person of bad character and convict on that basis rather than on the evidence of the charged offences. The trial judge had directed the jury in orthodox terms that it could not reason in that way, and those directions were unchallenged on appeal. The Court held that the directions removed or significantly mitigated the danger of unfair prejudice, so that probative value was not outweighed. The tendency evidence was therefore not inadmissible under s 101.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 97A(2) of the Evidence Act 1995 (NSW), tendency evidence about a defendant's sexual interest in children carries a presumption of significant probative value, and that presumption is not rebutted merely because the evidence comes from a single witness or concerns only one other person.
  • A tendency need not be demonstrated by conduct towards more than one child: the Court of Criminal Appeal confirmed this under both s 97A(3) and pre-existing authority, applying Burns-Dederer v R [2023] NSWCCA 191 and Aravena v R (2015) 91 NSWLR 258.
  • Section 97A(5) expressly prevents differences between the character of acts alleged in the tendency evidence and the charged conduct from being used to rebut the s 97A(2) presumption, even where those acts are materially different in nature.
  • The breadth with which a tendency is expressed does not, of itself, render tendency evidence irrelevant; it may, however, affect the weight attributed to the evidence's probative value.
  • Appropriate judicial directions warning the jury against reasoning from bad character can remove or significantly mitigate the danger of unfair prejudice under s 101, supporting the admissibility of tendency evidence despite that danger.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(4)
- Evidence Act 1995 (NSW), ss 55, 97, 97A (including ss 97A(2), (3), (4), (5)), 101, 137

Cases
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- Burns-Dederer v R [2023] NSWCCA 191
- Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323
- Festa v R (2001) 208 CLR 593; [2001] HCA 72
- Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Arvidson [2008] NSWCCA 135; (2008) 185 A Crim R 428
- R v Clarke (2023) 111 NSWLR 501; [2023] NSWCCA 123
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- Vagg v R [2020] NSWCCA 134