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District Court 2 October 2024

R v ND (No. 2)

[2024] NSWDC 702

Sexual offences

Citation: R v ND (No. 2) [2024] NSWDC 702
Court: District Court of New South Wales
Date: 2 October 2024
Judge(s): Mahony SC DCJ

Background

The accused (ND) faced multiple counts of sexual intercourse without consent against his wife (referred to as JY). The Crown alleged that the accused engaged in penile/vaginal intercourse with the complainant on several occasions despite her non-consent.

The Crown served a tendency notice under s 97 of the Evidence Act 1995 (NSW), seeking to adduce evidence that the accused held a state of mind that his wife had a "duty and obligation" to engage in sexual intercourse with him even when she did not consent. The evidence relied on included four statements by the complainant and a table of WhatsApp messages exchanged between the parties, in which the accused forwarded messages referring to the complainant's "duty" and "obligations" in their intimate relationship.

The accused opposed the application, arguing the evidence lacked significant probative value and that admitting it as tendency evidence would create unfair prejudice, particularly by allowing the stronger evidence supporting one count to bolster weaker counts.

  • Whether the evidence had significant probative value within the meaning of s 97(1)(b) of the Evidence Act 1995 (NSW), applying the two-limb test from Hughes v The Queen.
  • Whether the probative value outweighed the danger of unfair prejudice to the accused under s 101(2) of the Evidence Act 1995 (NSW).
  • Whether the WhatsApp messages and the complainant's evidence were capable of supporting the tendency alleged (that the accused believed his wife was duty-bound to submit to intercourse regardless of her non-consent).
  • Whether any unfair prejudice arising from disparities in the strength of evidence across the counts could be cured by judicial direction.

Decision

His Honour granted the Crown's application. Although the full reasons were truncated, the judgment sets out the analytical framework in detail, applying the two-limb test from Hughes v The Queen. The first limb asks to what extent the evidence supports the asserted tendency. The second asks to what extent that tendency makes more likely the facts making up the charged offences.

The accused conceded that the WhatsApp messages were "capable of supporting" an inference that the accused believed wives owed their husbands sex as part of a marital obligation. The key contested question was whether that belief extended to a duty that prevailed over non-consent. The Crown argued this further inference was open to the jury, drawing on the complainant's evidence that she told the accused she did not consent on approximately ten occasions.

On the question of unfair prejudice, the accused argued that the evidence supporting Count 2 was materially stronger than that for Counts 1 and 3, and that the jury would impermissibly use the stronger evidence to fill gaps in the weaker counts. The Crown submitted there was no real material difference for present purposes and relied on Patel v The Queen for the proposition that appropriate directions could ameliorate any prejudice. His Honour was satisfied the evidence met the requirements of both s 97(1)(b) and s 101(2), though the full reasoning on these conclusions falls beyond the truncated text.

Orders Made

  • The Crown's application to adduce tendency evidence was granted.

Key Takeaways

  • The District Court held that WhatsApp messages and oral statements reflecting a claimed entitlement to sex within a domestic relationship can form the basis of tendency evidence, accepting that the tendency notice could capture both a "state of mind" (a belief in a spousal duty to submit) and a tendency to act where the evidence supported it.

  • A partial concession by the accused, that the WhatsApp messages were "capable of supporting" the relevant tendency inference, narrowed the dispute to a single step in the reasoning chain and limited the grounds available to the defence in resisting the tendency application.

  • In rejecting the defence argument that stronger evidence on one count would "overwhelm or eclipse" weaknesses in other counts, the Court nonetheless treated the disparity in evidentiary strength across counts as a live consideration under s 101(2) of the Evidence Act 1995 (NSW).

  • No express admission by the accused of knowledge of non-consent was required to sustain the tendency argument; the Crown successfully contended that the accused's awareness was a matter for the jury to infer from surrounding circumstances, including the complainant's evidence that she had told him she did not consent.

  • Under the s 101(2) balancing exercise, the availability of judicial directions remained a key factor, with the Crown relying on Patel v The Queen to support the proposition that any prejudicial effect of the tendency evidence could be ameliorated by appropriate directions to the jury.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 98, 100, 101

Cases:
- Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20
- Patel v The Queen [2012] HCA 29