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District Court 4 July 2024

R v McDonald (a pseudonym)

[2024] NSWDC 265

Sexual offences

Citation: R v McDonald (a pseudonym) [2024] NSWDC 265
Court: District Court of New South Wales
Date: 4 July 2024
Judge: Sutherland SC DCJ

Background

The accused faced trial on multiple counts alleging sexual offences against his daughter, including sexual intercourse and assault with acts of indecency, said to have occurred when she was between approximately 5 and 13 years old. The Crown sought to lead two categories of uncharged act evidence: acts involving the complainant herself (admitted without objection as context and tendency evidence), and acts allegedly committed by the accused against his younger sister in the period between approximately 1975 and 1977.

The tendency the Crown identified was a sexual interest in female children aged between 5 and 13 with whom the accused had a familial connection, together with a tendency to act on that interest when the opportunity arose. The Crown sought to use the sister's evidence to support that tendency case.

The accused objected to the admission of the sister's evidence. The sole question before the court was whether that evidence should be excluded under the framework established by section 97A of the Evidence Act 1995 (NSW).

  • Whether the Crown's proposed tendency evidence relating to the accused's sister attracted the presumption of significant probative value under s 97A(2) of the Evidence Act 1995 (NSW).
  • Whether "exceptional circumstances" existed under s 97A(5) sufficient to warrant the court taking into account the factors ordinarily excluded from consideration when assessing probative value.
  • If exceptional circumstances existed, whether the tendency evidence in fact had significant probative value.
  • As an alternative, whether any probative value of the evidence was outweighed by its unfair prejudicial effect.

Decision

Section 97A was introduced in 2020 in response to recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse. It creates a rebuttable presumption that tendency evidence about a defendant's sexual interest in children, or their acting on such an interest, will have significant probative value. The section lists seven factors, including the passage of time and differences in circumstances or conduct, that ordinarily cannot be used to rebut the presumption unless the court finds "exceptional circumstances" in relation to those matters.

Sutherland SC DCJ found that a combination of factors amounted to exceptional circumstances warranting departure from the presumption. The alleged conduct with the sister occurred over three decades before the charged offending. Critically, some of those earlier acts occurred when the accused was himself a child, raising the principle of doli incapax (the presumption that a child under a certain age cannot form criminal intent). The accused's conduct during the intervening decades was described as unblemished.

Having found exceptional circumstances, the court then assessed whether the evidence actually carried significant probative value. The passage of approximately thirty years, the fact that the accused was a child throughout the alleged conduct with his sister, and differences in the nature of the conduct alleged across the two complainants, led the court to conclude that the presumption was rebutted. The tendency evidence relating to the sister did not have significant probative value.

The court added that even if this conclusion were wrong, the probative value would not outweigh the unfair prejudicial effect. The graphic nature of some of the conduct alleged by the sister, including the accused's ejaculation on her body as a child, was material of a kind likely to provoke such strong feelings of repulsion in the jury that no judicial direction could adequately correct for it. The application to lead the sister's evidence as tendency evidence was refused.

Orders Made

• The proposed tender of the tendency evidence with respect to the accused's sister is rejected.

Key Takeaways

  • The District Court confirmed that s 97A of the Evidence Act 1995 (NSW) creates a rebuttable presumption of significant probative value for tendency evidence in child sexual offence proceedings, but that the presumption remains genuinely rebuttable in appropriate cases.
  • A lapse of over three decades between uncharged tendency acts and the alleged charged offending, when combined with the fact that the accused was himself a child during the earlier conduct, can together constitute "exceptional circumstances" under s 97A(5).
  • Where exceptional circumstances exist, courts may take into account the passage of time and other listed factors in assessing whether the tendency evidence truly carries significant probative value sufficient to meet the threshold in ss 97(1)(b) and 101(2).
  • The principle of doli incapax is a relevant consideration when a defendant's prior conduct, relied on as tendency evidence, was committed during the defendant's own childhood.
  • Even where tendency evidence clears the probative value threshold, its admission may still be refused if its prejudicial effect, particularly the risk of jury repulsion from disturbing content, cannot be remedied by judicial direction.

Legislation and Cases Referenced

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

Cases
- BC v R [2019] NSWCCA 111
- Davidson (a pseudonym) v R [2024] NSWCCA 60
- HB v The Queen [2011] VSCA 295
- House v King (1936) 55 CLR 499
- Hughes v The Queen (2017) 92 ALJR 52
- McPhillamy v The Queen (2018) 361 ALR 13
- R v Bauer (a pseudonym) (2018) 92 ALJR 846
- R v Clarke [2023] NSWCCA 123
- R v Constant (2016) 126 SASR 1; [2016] SASCFC 87
- R v Cox [2007] EWCA Crim 3365
- R v Hanson [2005] 2 Cr App R 21
- R v M [2006] EWCA Crim 3408
- R v SK [2011] NSWCCA 292
- Regina v Thomas Douglas Watkins [2005] NSWCCA 164; 153 A Crim R 434
- RH v R [2014] NSWCCA 71
- TB v R [2019] NSWCCA 224