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Court of Criminal Appeal 28 July 2025

Wright v R

[2025] NSWCCA 108

Sexual offences
EVIDENCE TENDENCY EVIDENCE EXCLUSION OF TENDENCY EVIDENCE REASONABLE NOTICE WAS PROVIDED CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: Wright v R [2025] NSWCCA 108
Court: Court of Criminal Appeal
Date: 28 July 2025
Judge(s): Stern JA (principal judgment); McHugh JA and Garling J agreeing

Background

The applicant was convicted by jury on six counts involving child sexual offences: two counts of sexual intercourse with a child under 10 years and four counts of inciting a child under 10 years to commit sexual intercourse. The victims were the young daughter and son of his then partner, aged at most six and four years respectively at the time of the offending.

The Crown served a prosecution tendency notice on the defence on 13 January 2022, just four days before the trial was originally scheduled to begin on 17 January 2022. The trial was ultimately adjourned and commenced on 24 January 2022. The applicant objected to the tendency evidence on the basis that the notice was not "reasonable notice" as required by s 97(1)(a) of the Evidence Act 1995 (NSW), though defence counsel conceded the late service had caused no practical prejudice.

Following conviction, the applicant was sentenced to an aggregate term of 23 years' imprisonment with a non-parole period of 16 years and 6 months. He sought leave to appeal against both conviction and sentence.

  • Whether the trial judge erred in finding that the Crown's tendency notice, served shortly before trial, satisfied the "reasonable notice" requirement in s 97(1)(a) of the Evidence Act 1995 (NSW).
  • Whether the trial judge was required to expressly consider s 99 of the Evidence Act and rule 31.5 of the Uniform Civil Procedure Rules when evaluating the adequacy of notice.
  • Whether non-compliance with procedural rules or regulations made under s 99 is relevant to the question of reasonable notice under s 97(1)(a).
  • Whether the indicative sentences and the aggregate sentence were manifestly excessive.

Decision

Tendency notice (Ground One). The Court of Criminal Appeal confirmed that the primary purpose of the notice requirement in s 97 is to give the accused a reasonable opportunity to address and respond to the tendency evidence and its implications for the conduct of the proceedings. A secondary purpose is to direct attention to the tendency sought to be proved and the conduct relied upon to establish it, with an overarching aim of procedural fairness. Applying those purposes, the Court held that by the time the trial judge ruled on the question, the applicant had approximately 11 days' notice, the tendency evidence involved no new material, and defence counsel had frankly conceded there was no practical prejudice. Reasonable notice had therefore been provided.

Failure to refer to s 99 and UCPR r 31.5. The Court found no error in the trial judge's failure to refer expressly to those provisions. The trial judge's remarks during argument showed she understood the substance of the applicant's complaint, and non-compliance with the procedural rules underpinned the Crown's own concession of "late service." There was therefore no demonstrated omission of a material consideration.

Statutory construction. As a separate and independent basis for the same conclusion, the Court held that nothing in s 97 requires a court assessing "reasonable notice" to determine that question by reference to the fact or extent of non-compliance with regulations or rules made under s 99. The two provisions serve distinct functions, and importing a non-compliance inquiry under s 99 into the s 97(1)(a) assessment would not serve the purposes of the reasonable notice requirement.

Manifest excess (Ground Two). The Court applied the well-established principle that appellate intervention on manifest excess grounds requires more than a markedly different result: there must be an inference of misapplied principle or a sentence so far outside the available range as to demonstrate error. The Court found that neither the indicative sentences (ranging from 10 to 16 years) nor the aggregate sentence of 23 years were outside that range, having regard to the very young ages of the children, threats to kill one victim made during the offending, the abuse of trust involved, the inciting of sexual intercourse between siblings, and the broader sentencing material before the judge.

Orders Made

  • Extension of time for filing an application for leave to appeal granted.
  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that "reasonable notice" under s 97(1)(a) of the Evidence Act is assessed by reference to its underlying purposes: namely, whether the accused had a genuine and adequate opportunity to respond to the tendency evidence. An absence of actual prejudice is a significant factor in that assessment.
  • Non-compliance with procedural rules or regulations made under s 99 of the Evidence Act does not, as a matter of statutory construction, determine whether reasonable notice has been given for the purposes of s 97(1)(a). The two provisions operate independently.
  • A concession by defence counsel that late service caused no practical prejudice will carry significant weight when a court evaluates whether the notice requirement has been satisfied.
  • In dismissing the sentence appeal, the Court reaffirmed that indicative sentences and aggregate sentences are assessed separately on a manifest excess challenge: even if an indicative sentence were excessive, an aggregate sentence stands if it properly reflects the totality of the criminality involved.
  • Aggravating features in child sexual assault sentencing, including the extreme youth of victims (itself an element of the offence under s 66A), threats of violence made during offending, abuse of a position of trust, and the inciting of sexual acts between siblings, plainly support sentences towards the higher end of available ranges.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97(1)(a), 99, 100
- Crimes Act 1900 (NSW), ss 66A, 80G
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Evidence Regulation 2020 (NSW), reg 5
- Uniform Civil Procedure Rules 2005 (NSW), r 31.5
- Supreme Court (Criminal Appeal) Rules 2021, r 3.5(5)

Cases:
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- R v AC [2018] NSWCCA 130
- Jackson v R [2021] NSWCCA 15
- JM v R [2014] NSWCCA 297
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- R v Bauer (2018) 266 CLR 56; [2018] HCA 40
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Kelly v R [2023] NSWCCA 104