Citation: Regina v Daley [2002] NSWSC 279 revised - 24/04/2002
Court: NSW Supreme Court, Common Law Division
Date: 14 September 2001
Judge(s): Simpson J
Background
The accused faced a 21-count indictment arising from a series of alleged attacks on eight women between September 1998 and July 2000. The charges included detaining for advantage, aggravated sexual assault, attempted sexual assault, armed robbery, and indecent assault. The complainants were attacked on separate occasions and, in most instances, threatened with a knife or screwdriver.
The Crown alleged a pattern of common behaviour across the attacks, including a consistent preferred form of sexual assault, similar threats, and similar circumstances of approach. From those similarities, the Crown sought to prove that one person committed all the offences, and from other evidence that this person was the accused.
Before trial, the accused sought either eight separate trials (one per complainant) or, alternatively, trials grouped by common features. He also sought pre-trial rulings on the admissibility of substantial portions of the Crown's evidence, including tendency and coincidence evidence, DNA evidence, and various forms of identification evidence.
Legal Issues
- Whether tendency and coincidence evidence under ss 97 and 98 of the Evidence Act 1995 was admissible, having regard to the degree of similarity between the alleged offences
- Whether DNA evidence was admissible
- Whether picture, voice, and object identification evidence was admissible
- Whether any evidence had been illegally or improperly obtained, such that it should be excluded
- Whether the accused should be tried separately for the charges relating to each complainant, or in grouped trials
Decision
Simpson J conducted a voir dire over approximately two weeks, receiving virtually the complete Crown case and hearing extensive argument. Her Honour determined that the admissibility of tendency and coincidence evidence was the threshold question, because the outcome of that inquiry would directly govern whether separate trials were warranted. If such evidence were excluded in respect of one or more complainants, separation of trials would likely follow as a matter of course.
On tendency and coincidence evidence, her Honour was satisfied that the alleged similarities across the eight sets of charges were sufficiently probative to meet the statutory threshold. The common features, including the nature of the sexual acts demanded, the use of a knife or screwdriver, the manner of approach, and other behavioural consistencies, were found to carry significant probative value capable of outweighing any unfair prejudice.
The DNA evidence and picture identification evidence were also ruled admissible following the voir dire. Voice identification evidence, gathered through a recorded procedure in which complainants listened to an array of voices, was admitted, with her Honour noting that probative value varied according to the degree of certainty expressed by individual complainants and whether a single voice had been nominated. Object identification evidence, by which complainants viewed arrays of clothing and implements taken from the accused's home, was admitted with the qualification that its weight was limited: because all items came from the accused's home, identification could not carry the decisive significance it might have had items been drawn from a broader range of sources.
Following the evidentiary rulings delivered on 22 May 2001, the accused pleaded guilty to six counts and requested the court take into account an additional thirteen offences under s 32 of the Crimes (Sentencing Procedure) Act 1999. He subsequently sought to withdraw those pleas and sought new legal representation. The application to withdraw the guilty pleas was fixed for hearing on 6 December 2001. Simpson J noted that the substantive reasons for the evidentiary rulings remained unchanged by those later developments.
Orders Made
• Voice identification evidence would be admitted
• Object identification evidence would be admitted
Key Takeaways
- Admissibility of tendency and coincidence evidence under ss 97 and 98 of the Evidence Act 1995 can be a threshold question that determines whether a joint trial of charges relating to multiple complainants proceeds or is separated.
- Where alleged offences share a sufficiently distinctive pattern of behaviour across multiple complainants, a court may find that tendency and coincidence evidence carries probative value sufficient to justify its admission and to support a joint trial.
- Voice identification evidence obtained through a recorded identification procedure is admissible, but its probative weight varies with the degree of certainty expressed by each identifying witness.
- Object identification evidence retains some probative value even where the identified items all originate from the accused's premises, though the court found that such evidence cannot be treated as decisively linking the accused to the offences.
- Rulings on the admissibility of illegally or improperly obtained evidence require the court to assess the nature and circumstances of any impropriety, with discretion to exclude evidence where admission would be unfair or would bring the administration of justice into disrepute.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 97, 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Crimes Act 1900 (NSW)
- Road Transport (Vehicle Registration) Act 1997 (NSW)
Cases
- R v OGD [No.2] [2000] NSW CCA 404; (2000) 50 NSWLR 433
- Sutton v R (1984) 152 CLR 528
- Pfennig v R (1995) 182 CLR 461
- Hoch v R (1988) 165 CLR 292
- R v Lockyer (1996) 89 A Crim R 457
- R v Lock (unreported, 25 March 1997)
- R v Lewis (unreported, 20 June 1996)
- R v Perry (1982) 150 CLR 580
- R v Swaffield; R v Pavic [1998] HCA 1; (1998) 192 CLR 159
- R v McPhail and Tivey (1988) 36 A Crim R 390