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Davidson (a pseudonym) v The King

Davidson (a pseudonym) v The King

Case [2024] NSWCCA 60 6 May 2024

Admissibility of Evidence

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Davidson (a pseudonym) v R [2024] NSWCCA 60
Hearing dates: 12 April 2024
Decision date: 06 May 2024
Before: Adamson JA at [1];
Stern JA at [57];
Wright J at [58]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords:
EVIDENCE — relevance — whether evidence of applicant’s tendency to have a specified sexual interest was relevant — whether such evidence was irrelevant because it was incapable of establishing the tendency asserted
EVIDENCE — tendency evidence — evidence of applicant’s tendency to have a specified sexual interest — presumption in s 97A(2) of the Evidence Act 1995 (NSW) that such evidence has significant probative value — whether there were sufficient grounds under s 97A(4) to rebut presumption — where the tendency evidence derives from a single witness — where there were differences between the alleged sexual acts towards the complainant and as alleged in the tendency evidence
EVIDENCE — tendency evidence — whether probative value of tendency evidence outweighed danger of unfair prejudice to the applicant — Evidence Act s 101 — capacity of direction to remove prejudice

Legislation Cited:
Crimes Act1900 (NSW), s 66C
Evidence Act 1995 (NSW), ss 55, 97, 97A, 101, 137

Cases Cited:
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Burns-Dederer v R [2023] NSWCCA 191
Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323
Festa v R (2001) 208 CLR 593; [2001] HCA 72
Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Arvidson [2008] NSWCCA 135; (2008) 185 A Crim R 428
R v Clarke (2023) 111 NSWLR 501; [2023] NSWCCA 123
Restricted Judgment [2021] NSWCCA 298
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Vagg v R [2020] NSWCCA 134

Texts Cited:
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 February 2020

Category: Principal judgment
Parties: Scott Davidson (a pseudonym) (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Ramrakha (Applicant)
S Traynor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/37402
Publication restriction: Publication of names and any information or material that may lead to the identification of the applicant or the complainants is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Davidson (a pseudonym) [2023] NSWDC 101

Date of Decision:

17 February 2023

Before:

Haesler SC DCJ

File Number(s):

2020/37402

HEADNOTE

[This headnote is not to be read as part of the judgment]

Scott Davidson (a pseudonym) (the applicant) sought leave to appeal against his conviction for two counts of sexual intercourse with a child above…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davidson (a pseudonym) v The King

Details

AGLC: Davidson (a pseudonym) v The King [2024] NSWCCA 60
Case: [2024] NSWCCA 60
Decision Date: 06 May 2024

CaseChat Overview and Summary

In the case of Davidson v The King, the applicant sought to exclude evidence of a past sexual incident which was sought to be introduced as tendency evidence under s 97A of the Evidence Act 1995 (NSW). The applicant was charged with sexual offences against a complainant and the prosecution sought to introduce evidence of the applicant’s prior sexual history with the same complainant in an attempt to establish a pattern of behaviour. The court was required to determine whether the evidence of the past sexual incident was relevant and whether it was irrelevant because it was incapable of establishing the tendency asserted by the prosecution. Further, the court needed to decide whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the applicant under s 101 of the Evidence Act.

The court held that the evidence of the past sexual incident was relevant to the applicant’s tendency to have a specified sexual interest. The court noted that there was a presumption under s 97A(2) of the Evidence Act that such evidence has significant probative value. However, the court found that there were sufficient grounds under s 97A(4) to rebut the presumption. The court noted that the tendency evidence derived from a single witness and that there were significant differences between the alleged sexual acts towards the complainant and as alleged in the tendency evidence. As such, the court found that the probative value of the evidence was outweighed by the danger of unfair prejudice to the applicant.

Accordingly, the court excluded the evidence of the past sexual incident as it was not admissible under the Evidence Act. The court further found that any direction to the jury could not remove the prejudice caused by the evidence. The court held that the probative value of the evidence was not sufficient to justify the risk of unfair prejudice to the applicant.

The court ordered that the evidence of the past sexual incident be excluded from the trial. The court found that the probative value of the evidence was not sufficient to justify the risk of unfair prejudice to the applicant.

Orders