Citation: R v Duong [2024] NSWDC 470
Court: District Court of New South Wales
Date: 24 June 2024
Judge(s): Mahony SC DCJ
Background
The accused faced an indictment containing 12 principal counts, including charges of indecent assault, sexual assault on a child, and maintaining an unlawful sexual relationship with a child under 16. The complainant was the accused's step-daughter, and the alleged offending spanned a period of approximately two and a half years when she was aged 13 to 15.
In October 2009, following the complainant's disclosure to her mother of the alleged sexual misconduct, the mother confronted the accused. He denied the allegations, but that same evening consumed 29 tablets of a prescription antidepressant in what the Crown characterised as a suicide attempt. He was taken to hospital by ambulance.
Before jury empanelment, the Crown applied under section 192A of the Evidence Act 1995 (NSW) for an advance ruling on whether evidence of that suicide attempt was admissible as post-offence conduct demonstrating consciousness of guilt.
Legal Issues
- Whether evidence of the accused's suicide attempt, occurring shortly after confrontation with the allegations, satisfied the five preconditions for admissibility of post-offence conduct as consciousness of guilt established in R v Cook [2004] NSWCCA 52.
- Whether the evidence had sufficient probative value to be admissible.
- Whether the danger of unfair prejudice to the accused outweighed the probative value of the evidence under section 137 of the Evidence Act, requiring exclusion.
- Whether the evidence could properly be led in connection with each of the 15 counts on the indictment, or whether it was too vague to be tied to any particular count.
Decision
The five preconditions for post-offence conduct evidence
Mahony SC DCJ applied the framework from R v Cook, which requires post-offence conduct to satisfy five conditions before it can be admitted as consciousness of guilt. The first two conditions, that the conduct was deliberate and that there was a temporal and contextual connection to the disclosure of the allegations, were uncontested (at [30]). The court was satisfied that the accused's motivation, being a realisation of guilt and a fear of the truth, was an available inference on the evidence, although alternative explanations remained open for the jury to consider (at [31]).
Capability to support consciousness of guilt across all counts
The court found there was ample independent evidence of the suicide attempt. Given the wide-ranging nature of the allegations over a prolonged period, the conduct was capable of indicating the accused's consciousness of guilt in respect of each count on the indictment (at [32]). The court rejected the accused's argument that the evidence was too vague or non-specific to be linked to individual counts, finding instead that the sustained nature of the alleged offending made the connection available across all 15 counts.
Probative value versus unfair prejudice under section 137
The court rejected the accused's submission that the evidence was of limited or weakly probative value. It accepted the Crown's position that the evidence had substantial probative value, being capable of demonstrating that the accused appreciated the seriousness of the allegations and their grave consequences for him (at [34]). The court acknowledged the evidence was inherently prejudicial, but found that the danger of unfair prejudice did not outweigh its probative value (at [34]-[35]). The court noted that carefully crafted jury directions could minimise the risk of misuse, and that the accused would have the opportunity to lead evidence of alternative explanations for the conduct (at [35]).
Orders Made
- Crown application granted to adduce evidence of the accused's self-harm as consciousness of guilt.
- The Crown was directed to produce an appropriate draft jury direction in due course.
Key Takeaways
- A suicide attempt following the disclosure of serious criminal allegations can satisfy the preconditions for admissibility as post-offence conduct evidencing consciousness of guilt, provided the relevant conditions from R v Cook are met, including a temporal and contextual connection to the disclosure (at [30]-[31]).
- Where the accused's motivation for self-harm is genuinely ambiguous, that ambiguity does not necessarily defeat admissibility. The court confirmed that alternative explanations go to weight for the jury rather than to the threshold question of admissibility (at [31]).
- Under section 137 of the Evidence Act, the court must exclude prosecution evidence where the danger of unfair prejudice outweighs probative value. Here, the District Court found that substantial probative value, combined with the availability of carefully crafted directions, was sufficient to permit admission despite the inherently prejudicial nature of the evidence (at [34]-[35]).
- Post-offence conduct arising from a single incident can be admitted as capable of evidencing consciousness of guilt across multiple counts where the alleged offending is broad in scope and the conduct is consistent with guilt generally, not just in relation to a discrete charge (at [32]).
- The assessment of probative value under section 137 takes the evidence at its highest, without evaluating the reliability or credibility of witnesses, consistent with the approach confirmed by the High Court in IMM v The Queen (2016) 257 CLR 300 (at [18]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW)
- Evidence Act (NSW) 1995
Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- R v XY [2013] NSWCCA 121
- RH v R [2011] NSWCCA 98
- R v Cook [2004] NSWCCA 52