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District Court 8 October 2024

R v ND (No. 3)

[2024] NSWDC 703

Sexual offences
CROWN APPLICATION FOR ADVANCE RULING

Citation: [2024] NSWDC 703
Court: District Court of New South Wales
Date: 8 October 2024
Judge(s): Mahony SC DCJ

Background

The Crown sought an advance ruling under s 192A of the Evidence Act 1995 (NSW) on whether WhatsApp messages exchanged between the complainant and the accused over approximately eight months (28 July 2021 to 13 March 2022) should be admitted at trial. The accused faced three counts of sexual assault on the indictment, and the key issues at trial were consent and the accused's knowledge of non-consent.

Some of the WhatsApp messages had already been ruled admissible as tendency evidence in earlier rulings. This application concerned the remaining ten categories of messages that the Crown sought to tender not as tendency evidence but as "relationship evidence" (sometimes called "context evidence"). The Crown argued these messages demonstrated the accused's attitude that the complainant, as his wife, was subordinated and subjugated to the point of worthlessness, and that this attitude was relevant to consent and knowledge of non-consent.

The accused opposed admission, arguing the messages were highly prejudicial, amounted to tendency evidence dressed up as relationship evidence, and would impermissibly bolster the complainant's credit through prior consistent statements.

  • Whether the WhatsApp messages were admissible as relationship or context evidence to illuminate the domestic relationship between the complainant and the accused in the lead-up to the charged offences.
  • Whether the messages were properly characterised as relationship evidence or were in substance tendency evidence that had not met the prerequisites for tendency reasoning.
  • Whether any references to uncharged sexual acts in the messages could only be admitted as tendency evidence under the stricter tendency evidence framework.
  • Whether the probative value of the messages was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995 (NSW).
  • Whether admission of the complainant's own statements within the messages would impermissibly bolster her credit through prior consistent statements.

Decision

The judgment text as provided is truncated before the court's final ruling. However, the reasoning traversed by Mahony SC DCJ makes clear that both parties accepted the applicable legal principles from Roach v The Queen, Norman v R, and DJV v R. The central question was whether those principles, properly applied, supported or excluded the WhatsApp messages on the specific facts.

The Crown argued the messages were not hearsay (the complainant had referenced the abusive messaging in her first statement), and that the dialogue between the parties, including the accused's apologies and admissions that his language was "harsh," formed a continuing narrative relevant to the issue of non-consent. The Crown contended the messages "completed the picture" in a substantial way rather than merely filling a vacuum.

The accused countered that there was no evidentiary vacuum, given the complainant's oral evidence, her mother's evidence, and the already-admitted tendency evidence. Defence counsel argued that several messages (for example, those containing the phrase "just die" or "go and die," and one message in which the complainant stated "you have been extremely violent") were highly prejudicial and risked the jury impermissibly reasoning that the accused was the type of person who would commit sexual assault without consent. The accused also flagged concerns about a reference to an uncharged sexual assault at item 475 in the message table, noting that the complainant had not raised it until prompted by police following a prosecution inquiry.

Because the published text is truncated, the ultimate orders and detailed findings on each category of messages are not available from this extract. Practitioners should consult the full judgment for the court's conclusions.

Orders Made

  • The full orders are not available in the truncated text of this decision. The ruling concerned the admissibility of the remaining ten categories of non-tendency WhatsApp messages. Earlier rulings had already admitted messages on 11 occasions as tendency evidence.

Key Takeaways

  • The District Court provided a detailed analysis of the distinction between tendency evidence and relationship (or context) evidence in the messaging context within a sexual assault matter involving a domestic relationship, closely scrutinising whether WhatsApp messages genuinely served a contextual purpose or constituted tendency evidence recharacterised as relationship evidence.

  • In assessing the Crown's submission, the Court considered the "vacuum" test and its limits, noting the argument that relationship evidence need not fill an evidentiary vacuum but can also "complete the picture." The defence contended that the existing body of evidence, including oral testimony, tendency evidence, and third-party evidence, left no gap to fill. The reasoning illustrates the tension that arises when relationship evidence is sought in cases with already rich evidentiary records.

  • Hearsay and prior consistent statement objections raised by the defence were addressed in relation to the complainant's own words within messaging exchanges. The defence argued that the complainant's messages repeating the accused's alleged statements were prior consistent statements that impermissibly bolstered credit, and the Court considered whether independent indicia of reliability in the accused's own replies could address this objection.

  • Where uncharged acts were embedded in messaging evidence, the District Court treated this as a significant gatekeeping issue, considering with reference to DJV v R whether a reference to an uncharged sexual assault within otherwise contextual material required separate justification under the tendency evidence framework.

  • Under s 137 of the Evidence Act 1995 (NSW), both parties accepted that the messages were capable of significant prejudice. Rather than assessing the admissibility of a large tranche of messaging material as a single block, the Court undertook a granular, message-by-message analysis reflecting the seriousness of the domestic violence context.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 137, 192A

Cases:
- DJV v R [2008] NSWCCA 272; 200 A Crim R 206
- Norman v R [2012] NSWCCA 230
- R v Clark [2001] NSWCCA 494; 123 A Crim R 506
- R v Hammoui (No.1) [2005] NSWSC 99
- R v Latu [2018] NSWSC 1659
- Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12
- Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17