R v AA

Case [2020] NSWDC 362 23 April 2020

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District Court

New South Wales

Medium Neutral Citation: R v AA [2020] NSWDC 362
Hearing dates: 20 & 21 April 2020
Decision date: 23 April 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
I admit evidence identified by the Crown in its ‘Tendency Notice’ as “Cross Admissible” as relevant to establish the two particular tendencies that have significant probative value.
The evidence of “Uncharged Acts” are, in reality, not suitable for ‘charging’ and are not admissible as tendency evidence but are available as evidence of “context” and/or “relationship”.
The “Other Evidence”, as described in the Crown’s ‘Notice’, does not have significant probative value, if otherwise it ought not be admitted pursuant to s 101 Evidence Act 1995.

Catchwords:
Interlocutory orders – admissibility of tendency evidence

Legislation Cited:
Criminal Procedure Act 1986
Evidence Act 1995

Cases Cited:
BP v R [2010] NSWCCA 303
Ceissmann v R [2015] NSWCCA 74
DAO (2011) 81 NSWLR 568; [2011] NSWCCA 63
Demirok [1976] V.R. 244
DPP v RDT [2018] NSW CCA 293
DSJ v R (2012) 84 NSWLR 758; [2012] NSWCCA 9
Hughes v R (2017) 263 CLR 338; [2017] HCA 20
IMM v R (2016) 257 CLR 300; [2016] HCA 14
JG v R [2014] NSWCCA 138
Jones v R [2014] NSWCCA 280; (2014) 246 A Crim R 425
McPhillamy v R [2018] HCA 52; (2018) 92 ALJR 1045
Mol v R [2017] NSWCCA 76
Pfenning v R [1995] HCA 7; 182 CLR 461
R v Bauer [2018] HCA 40; (2018) 92 ALJR 1045
R v Carroll (2002) 213 CLR 635; [2002] HCA 55
R v Dent [2016] NSWSC 99
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434
Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
Sokolowskyi [2014] NSW CCA 55, 239; (2014) 239 A Crim R 528

Category: Procedural and other rulings
Parties: Regina (Crown)
AA (Accused)
Representation:
Counsel:
Mr A Terracini (DPP)
Ms M Swift (Accused)
Solicitors:
Ms C Patrizi (DPP)
Ms C Younes (Accused)

File Number(s): 2018/00137078
Publication restriction: No

Judgment

Introduction

The Crown has filed an indictment in the following terms, that the accused:

“Between 1 November 1986 and 30 November 1986, at X in the State of NSW, did have sexual intercourse with CC without his consent and knowing that CC had not consented to the sexual intercourse.

Between 1 November 1986 and 30 November 1986, at X in the State of NSW, did have sexual intercourse with CC without his consent and knowing that CC had not consented to the sexual intercourse.

Between 5 April 1987 and 25 April 1987, at X in the State of NSW, did have sexual intercourse with CC without his consent and knowing that CC had not consented to the sexual intercourse.

Between 5 April 1987 and 25 April 1987, at X in the State of NSW, did have sexual intercourse with CC without his…

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 R v AA

Details

AGLC: R v AA [2020] NSWDC 362
Case: [2020] NSWDC 362
Decision Date: 23 April 2020

CaseChat Overview and Summary

The parties in this case are the Crown and a defendant identified as AA. The dispute centres around the admissibility of various forms of evidence in a criminal proceeding. The matter was heard in a relevant Australian court. The court was tasked with determining whether certain pieces of evidence were admissible under the Evidence Act 1995, particularly concerning the admissibility of tendency evidence.

The primary legal issues were the admissibility of evidence identified as "Cross Admissible" by the Crown, "Uncharged Acts," and "Other Evidence." The court needed to decide if these categories of evidence had significant probative value and whether they could be admitted under the relevant sections of the Evidence Act. The Crown argued that the evidence was admissible to establish particular tendencies that were of significant probative value. The defence argued against the admissibility of certain categories, asserting they lacked probative value or should be excluded under the exclusionary provisions of the Act.

The court carefully considered the nature and relevance of the evidence in question. It found that the "Cross Admissible" evidence was relevant to establish two specific tendencies that had significant probative value and thus was admissible. Conversely, the "Uncharged Acts" were deemed unsuitable for the purpose of proving a tendency and were instead considered appropriate for establishing context or relationship. The court also ruled that the "Other Evidence" did not have significant probative value and should be excluded unless it met the criteria under section 101 of the Evidence Act. The court's reasoning was grounded in the statutory provisions and the need to balance probative value against the potential for unfair prejudice.

Orders

Orders of the court

I admit evidence identified by the Crown in its ‘Tendency Notice’ as “Cross Admissible” as relevant to establish the two particular tendencies that have significant probative value.

The evidence of “Uncharged Acts” are, in reality, not suitable for ‘charging’ and are not admissible as tendency evidence but are available as evidence of “context” and/or “relationship”.

The “Other Evidence”, as described in the Crown’s ‘Notice’, does not have significant probative value, if otherwise it ought not be admitted pursuant to s 101 Evidence Act 1995.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v AA [2020] NSWDC 362

Cases Citing This Decision

No citing cases yet.

Cases Cited

McPhillamy v The Queen [2018] HCA 52
Citation 1 (Para 123)

…Another authority worth citing, slightly pre-dating Bauer by about a month is McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045. There the majority of the High Court upheld the dissenting judgment of Meagher JA ([2017] NSWCCA 130 at [115]–[130]), as did Edelman J in a separate judgment. The High Court ma…
R v Bauer [2018] HCA 40
Citation 2 (Para 109)

…As to the cross admissibility of the evidence the Crown said it relied upon the reasoning of the High Court in Bauer v The Queen [2018] HCA 40; (2018) 92 ALJR 846. Here the respective allegations are not so remote in time as to undermine the probative value of the evidence. The evidence of charged and uncharged…
Hughes v The Queen [2017] HCA 20
Citation 3 (Para 115)

…the Dictionary (of the Evidence Act ) definition of “probative value” of the majority of the High Court in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 stated (at [16]):…
McPhillamy v R [2017] NSWCCA 130
Citation 4 (Para 123)

…onth is McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045. There the majority of the High Court upheld the dissenting judgment of Meagher JA ([2017] NSWCCA 130 at [115]–[130]), as did Edelman J in a separate judgment. The High Court majority concluded, in the context of evidence of alleged tendency arising f…
Mol v R [2017] NSWCCA 76
Citation 5 (Para 131)

…The Court may mitigate or remove the prejudicial effect of tendency evidence by direction ( Mol v R [2017] NSWCCA 76 at [36]). The character of relevant prejudice should be specifically identified ( Mol op. cit.). This risk in s 101(2) of the Act is concerned with the risk “that the evidence will be misused in some…
IMM v The Queen [2016] HCA 14
Citation 6 (Para 72)

…Reference was made to the High Court judgment of IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, where the Court said:…
R v Dent [2016] NSWSC 99
Citation 7 (Para 116)

…n relevant events may be of significance in assessing the probative value of particular evidence relied upon for tendency purposes, e.g. R v Dent [2016] NSWSC 99 – (albeit that was a gap of 37 years), R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434. A tendency to act in a particular way may be identified wi…
Hughes v R [2015] NSWCCA 330
Citation 8 (Para 126)

…As to the operation of s 101 of the Act, in the context of its terms the Court of Criminal Appeal in Hughes ([2015] NSWCCA 330 at [189]–[193]) held (not granted special leave for the High Court Appeal):…
Ceissman v R [2015] NSWCCA 74
Citation 9 (Para 127)

…The determination to be made under s 101(2) requires the trial judge to engage in a balancing exercise. As explained by this Court in Ceissman v R [2015] NSWCCA 74at [36], in relation to coincidence evidence, although the same principles apply in respect of tendency evidence:…
Jones v R [2014] NSWCCA 280
Citation 10 (Para 117)

…lacking “significant probative value” ( Hughes at [62]) or may weaken the inference of “tendency” sought to be established Jones v R [2014] NSWCCA 280; (2014) 246 A Crim R 425 at [88]-[90]. This, in terms of s 97, requires consideration of “other evidence adduced or to be adduced by the party seeking to adduce the…
Saoud v R [2014] NSWCCA 136
Citation 11 (Para 140)

…opposed to establishing more general matters which are not of significant probative value ( Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 at [42] – [44] – per Basten JA: BP v R [2010] NSWCCA 303, at [108], per Hodgson JA).…
JG v R [2014] NSWCCA 138
Citation 12 (Para 132)

…s the section requires, to other evidence not just that of the particular complainant that alleges the existence of claimed tendency ( JG v the Queen [2014] NSWCCA 138, DSJ v the Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9). The authorities establish that where there are competing inferences to be drawn from the avai…
Sokolowskyj v R [2014] NSWCCA 55
Citation 13 (Para 129)

…In Sokolowskyj [2014] NSWCCA 55, 239; (2014) 239 A Crim R 528the Court (Hoeben CJ at CL Adams and Hall JJ agreeing) held, at [47], that “[t]he concept of ‘prejudicial effect’ is understood in substantially the same way as ‘unfair prejudice’”,as the latter term is used in s 137, namely, that there is a risk that the…
Dia v The Queen [2014] NSWCCA 9
Citation 14 (Para 117)

…are relevant to the assessment of the “probative value” of evidence of a particular tendency ( DSJ v R (2012) 84 NSWLR 758; [2012] NSWCCA, JG v R [2014] NSWCCA 9). Such other evidence may “reinforce” evidence otherwise lacking “significant probative value” ( Hughes at [62]) or may weaken the inference of “tendency…
DSJ v The Queen [2012] NSWCCA 9
Citation 15 (Para 117)

…elevant to establish a particular tendency are relevant to the assessment of the “probative value” of evidence of a particular tendency ( DSJ v R (2012) 84 NSWLR 758; [2012] NSWCCA, JG v R [2014] NSWCCA 9). Such other evidence may “reinforce” evidence otherwise lacking “significant probative value” ( Hughes at [62]) o…
Dao v R [2011] NSWCCA 183
Citation 16 (Para 129)

…section calls for a determination of the “prejudicial effect” the evidence “ may have on the defendant” (emphasis added). In DAO (2011) 81 NSWLR 568; [2011] NSWCCA 63, Simpson J considered, at [171], that such terminology meant that:…
Dao v The Queen [2011] NSWCCA 63
Citation 17 (Para 129)

…determination of the “prejudicial effect” the evidence “ may have on the defendant” (emphasis added). In DAO (2011) 81 NSWLR 568; [2011] NSWCCA 63, Simpson J considered, at [171], that such terminology meant that:…
BP v R; R v BP [2010] NSWCCA 303
Citation 18 (Para 140)

…f significant probative value ( Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 at [42] – [44] – per Basten JA: BP v R [2010] NSWCCA 303, at [108], per Hodgson JA).…
R v Shamouil [2009] NSWSC 24
Citation 19

…de on the assumption that the evidence said to constitute coincidence evidence is accepted by the tribunal of fact: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228.”…
R v Ngatikaura [2006] NSWCCA 161
Citation 20

…to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect.” See also R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 at [32].…
R v Shamouil [2006] NSWCCA 112
Citation 21 (Para 131)

…onal or illogical response by giving the evidence more weight than it truly deserves or by distracting the jury ( R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 at [72]).…
R v RN [2005] NSWCCA 413
Citation 22 (Para 47)

…outweighs (or does not substantially outweigh, as the case may be) any such prejudicial effect: R v Harker [2004] NSWCCA 427 at [47], [58]; R v RN [2005] NSWCCA 413.”…
R v Watkins [2005] NSWCCA 164
Citation 23 (Para 116)

…alue of particular evidence relied upon for tendency purposes, e.g. R v Dent [2016] NSWSC 99 – (albeit that was a gap of 37 years), R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434. A tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwith…
R v Harker [2004] NSWCCA 427
Citation 24 (Para 47)

…tive value of the evidence substantially outweighs (or does not substantially outweigh, as the case may be) any such prejudicial effect: R v Harker [2004] NSWCCA 427 at [47], [58]; R v RN [2005] NSWCCA 413.”…
R v Ellis [2003] NSWCCA 319
Citation 25 (Para 94)

…rejudicial effect on the defendant. The section involves an evaluative judgment by the trial judge, not the exercise of a discretion: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94]-[95], although it is accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of…
R v Carroll [2002] HCA 55
Citation 26

…enning v R [1995] HCA 7; 182 CLR 461 R v Bauer [2018] HCA 40; (2018) 92 ALJR 1045 R v Carroll (2002) 213 CLR 635; [2002] HCA 55 R v Dent [2016] NSWSC 99 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434 Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 Soko…
Regina v Ellis; Regina v Carr [2002] NSWCCA 211
Citation 27 (Para 94)

…n the defendant. The section involves an evaluative judgment by the trial judge, not the exercise of a discretion: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94]-[95], although it is accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of a determinatio…
Pfennig v the Queen [1995] HCA 7
Citation 28

…Crim R 425 McPhillamy v R [2018] HCA 52; (2018) 92 ALJR 1045 Mol v R [2017] NSWCCA 76 Pfenning v R [1995] HCA 7; 182 CLR 461 R v Bauer [2018] HCA 40; (2018) 92 ALJR 1045 R v Carroll (2002) 213 CLR 635; [2002] HCA 55 R v Dent [2016] NSWSC 99 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 R v Watkins [2005…
House v R [1936] HCA 40
Citation 29

…ercise of a discretion: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94]-[95], although it is accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of a determination made under s 101(2). see Ford at [110]; DAO at [170]; Fletcher at [48]. As Simpson J (Kirb…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 4)
Evidence Act 1995 (Cth)
1 mention (from Para 55)

Medium Neutral Citation:	R v AA [2020] NSWDC 362
Hearing dates:	20 & 21 April 2020
Decision date:	23 April 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	I admit evidence identified by the Crown in its ‘Tendency Notice’ as “Cross Admissible” as relevant to establish the two particular tendencies that have significant probative value. The evidence of “Uncharged Acts” are, in reality, not suitable for ‘charging’ and are not admissible as tendency evidence but are available as evidence of “context” and/or “relationship”. The “Other Evidence”, as described in the Crown’s ‘Notice’, does not have significant probative value, if otherwise it ought not be admitted pursuant to s 101 Evidence Act 1995.
Catchwords:	Interlocutory orders – admissibility of tendency evidence
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	BP v R [2010] NSWCCA 303 Ceissmann v R [2015] NSWCCA 74 DAO (2011) 81 NSWLR 568; [2011] NSWCCA 63 Demirok [1976] V.R. 244 DPP v RDT [2018] NSW CCA 293 DSJ v R (2012) 84 NSWLR 758; [2012] NSWCCA 9 Hughes v R (2017) 263 CLR 338; [2017] HCA 20 IMM v R (2016) 257 CLR 300; [2016] HCA 14 JG v R [2014] NSWCCA 138 Jones v R [2014] NSWCCA 280; (2014) 246 A Crim R 425 McPhillamy v R [2018] HCA 52; (2018) 92 ALJR 1045 Mol v R [2017] NSWCCA 76 Pfenning v R [1995] HCA 7; 182 CLR 461 R v Bauer [2018] HCA 40; (2018) 92 ALJR 1045 R v Carroll (2002) 213 CLR 635; [2002] HCA 55 R v Dent [2016] NSWSC 99 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434 Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 Sokolowskyi [2014] NSW CCA 55, 239; (2014) 239 A Crim R 528
Category:	Procedural and other rulings
Parties:	Regina (Crown) AA (Accused)
Representation:	Counsel: Mr A Terracini (DPP) Ms M Swift (Accused) Solicitors: Ms C Patrizi (DPP) Ms C Younes (Accused)
File Number(s):	2018/00137078
Publication restriction:	No