Citation: R v NB [2024] NSWDC 230
Court: District Court of New South Wales
Date: 12 June 2024
Judge(s): Abadee DCJ
Background
The accused, the biological uncle of the complainant, faced trial on five charges (the second being an alternative to the first) relating to alleged sexual offences against the complainant. The alleged conduct spanned from April 2020 to August 2022, when the complainant was between five and seven years of age.
The trial date had been set for 11 June 2024. During the complainant's pre-recorded evidence session in March 2024, she disclosed a further alleged offence, which caused procedural complications including the adjournment of a readiness hearing. The Crown served its tendency notice on the accused's legal representatives on 16 May 2024. Under the court's Practice Note 18, the notice should have been served no later than 22 February 2024, approximately three months earlier.
After the jury was empanelled, it was stood down so the court could deal with the Crown's application under s 100(1) of the Evidence Act 1995 (NSW) to dispense with the requirement that a compliant tendency notice be served before tendency evidence could be adduced.
Legal Issues
- Whether the court should exercise its dispensing power under s 100(1) of the Evidence Act to waive the requirement in s 97(1)(a) that a tendency notice be served within the prescribed timeframe
- What weight should be given to the Crown's failure to explain the delay in serving the notice
- Whether any unfairness to the accused would result from allowing late-served tendency evidence to be used at trial
Decision
Issue: Exercise of the dispensing power under s 100(1)
The court identified two primary considerations for the dispensing power, drawn from the Court of Criminal Appeal's reasoning in R v AC [2018] NSWCCA 130 and R v Harker [2004] NSWCCA 427: the probative value of the proposed tendency evidence and any prejudice caused to the accused by the Crown's failure to give timely notice (at [20]-[21]).
On probative value, the accused did not dispute that the tendency evidence attracted the presumption of significant probative value under s 97A(2) of the Evidence Act. The court held that this presumption itself weighed positively in favour of exercising the dispensing power (at [22]). The court also noted that the Crown's complaint evidence was not strong, making the tendency evidence correspondingly important to the prosecution case (at [23]).
On prejudice, although the accused's counsel submitted that the late notice caused unfairness, particularly given the accused's hearing disability and reliance on an Auslan interpreter, she conceded that the accused had been on notice of the charged events and could instruct his lawyers about them. Counsel acknowledged the real issue was whether the Crown could use evidence already known to the defence as tendency evidence, not whether the accused was unaware of the underlying conduct (at [16], [22]).
Issue: The s 192(2) mandatory considerations
Working through the mandatory considerations in s 192(2) of the Evidence Act, the court found that adducing the tendency evidence would neither lengthen nor shorten the hearing and would not necessitate an adjournment (at [23]). The court was not persuaded that any material unfairness to the accused would result, noting that counsel had not objected to the evidence on the basis of s 137 of the Evidence Act or identified how, given the evidence's presumptive probative value and available jury directions, there was a real risk of misuse (at [23]). The court also took into account the interests of the community and the complainant, consistent with the approach in AC (at [23]).
The court acknowledged the unexplained delay and accepted it reflected poorly on the Crown, but did not treat it as determinative. It noted that complications arising from pre-recorded evidence in child sexual offence matters can contribute to procedural delays, and that withholding the dispensing power simply to punish the Crown for non-compliance is not a proper exercise of the discretion (at [24]-[25]).
Orders Made
- The court directed that s 97(1)(a) of the Evidence Act does not apply to the tendency evidence the subject of the tendency notice dated 16 May 2024, notwithstanding the Crown's failure to serve the notice at least six weeks before the readiness hearing fixed for 4 April 2024.
Key Takeaways
- Under s 100(1) of the Evidence Act 1995 (NSW), a court may dispense with the requirement to serve a compliant tendency notice; the absence of any explanation for the delay in service is a relevant but not determinative consideration (at [12], [24]).
- The two principal considerations for the dispensing power are the probative value of the proposed tendency evidence and any prejudice caused to the accused by the Crown's non-compliance with the notice requirement (at [20]-[21]).
- Where an accused does not contest that the proposed tendency evidence carries presumptive significant probative value under s 97A(2), that presumption itself weighs in favour of granting dispensation (at [22]).
- Unfairness for the purposes of s 192(2)(b) of the Evidence Act encompasses matters that might engage s 137, including risk of misuse of evidence; a bare assertion of unfairness unsupported by a specific objection on that basis carries limited weight (at [23]).
- The District Court confirmed, consistent with AC, that withholding the dispensing power as a sanction for Crown non-compliance with procedural rules is not a legitimate reason to refuse the application (at [25]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss, 97, 97A, 100, 192
Cases
- R v AC [2018] NSWCCA 130
- R v Harker [2004] NSWCCA 427
- R v RJ [2011] NSWDC 158