R v AC

[2018] NSWCCA 130

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v AC [2018] NSWCCA 130

Hearing dates:

13 June 2018

Date of orders:

13 June 2018

Decision date:

27 June 2018

Before:

Meagher JA at [1];
Bellew J at [1];
Fagan J at [1]

Decision:

1. Appeal allowed.
2. Set aside order 1 made on 21 May 2018.
3. Direct that paragraph 97(1)(a) of the tendency rule does not to apply to the tendency evidence which is the subject of the tendency notice served on 20 and 21 March 2018 notwithstanding the Crown’s failure to give notice of its intention to adduce that evidence within the time provided in accordance with s 99.
4. Order that the respondent’s notice of motion filed 22 March 2018 be dismissed.

Catchwords:

EVIDENCE – exclusion of tendency evidence – Crown failure to serve tendency notice within relevant time – primary judge refused to dispense with the notice requirements for service – where no explanation for the failure to serve the notice – where evidence had substantial probative value not outweighed by any relevant prejudice – where late service of tendency notice will not cause any prejudice to the accused – whether under Evidence Act, s 100(1) the Court should dispense with the notice requirement

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5F(3A)
Director of Public Prosecutions Act 1986 (NSW), s 7(1)
District Court Rules, Part 53 r 10C
Evidence Act 1995 (NSW), ss 97, 99, 100, 102, 198
Uniform Civil Procedure Rules, r 31.5

Cases Cited:

Andelman v The Queen [2013] VSCA 25; (2013) 227 A Crim R 81
BM v R [2017] NSWCCA 253
Clancy v Director of Public Prosecutions [2018] NSWCA 102
El-Haddad v R (2014) 88 NSWLR 93; [2015] NSWCCA 10
Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52
IMM v The Queen (2016) 257 CLR 300
Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
Martin v State of NSW [2002] NSWCA 337
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; [1995] HCA 36
R v Harker [2004] NSWCCA 427
R v Reardon [2002] NSWCCA 203; 186 FLR 1
Stanoevski v R (2002) 202 CLR 115; [2001] HCA 4
Tomko v Palasty (No 2) (2008) 71 NSWLR 61 at [55]; [2007] NSWCA 369
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

Category:

Principal judgment

Parties:

Regina (Crown)
AC (Respondent)

Representation:

Counsel:

 

S Dowling SC and J Tunks (Crown)
P Singleton (Respondent)

 

Solicitors:

  Solicitor for Director of Public Prosecutions (Crown)
Agent for N Steinberg (Respondent)

File Number(s):

2017/50193

Publication restriction:

Non-publication order made by District Court on 20 April 2018 under Court (Suppression and Non-publication Act) 2010 (NSW) in relation to identity of complainants.

HEADNOTE

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

The respondent was charged with fourteen historic sexual assault offences relating to five female complainants, on a single indictment. Prior to October 2017, the prosecution brief containing the statement of each complainant was served on the respondent. A tendency notice, advising that the evidence of each complainant was to be led in support of the charges relating to each other complainant, was prepared but not served. On 19 October, the respondent was arraigned for trial in the District Court. He pleaded not guilty to each charge. A trial date was fixed for 26 March 2018.

On 22 February 2018, the Crown was directed to serve any tendency notice by 5pm the following day. The tendency notice relied on was not served until 20 and 21 March 2018. On 22 March, the respondent filed a motion that the counts relating to each complainant be tried separately. The trial date was vacated on 26 March 2018 because there was no judge available.

The primary judge heard the respondent’s motion. He found that there would be no prejudice to the respondent as a result of the late service, and that the proposed evidence had significant probative value not outweighed by any relevant prejudice. However, his Honour declined to dispense with the notice requirement, considering the absence of an explanation for the omission to serve the notice, and the need to secure the Crown’s compliance with the rules and orders of the Court as to the service of tendency notices. The Director of Public Prosecutions appealed against that decision, pursuant to Criminal Appeal Act 1912 (NSW), s 5F(3A).

The Court (Meagher JA, Bellew and Fagan JJ) held, allowing the appeal:

1. The primary judge erred in holding that a mandatory and determinative matter for the Crown’s application was that there be a sufficient explanation for its failure to comply with s 97(1)(a). His Honour also failed to address the mandatory considerations in Evidence Act, s 192(2): at [28], [32].

Stanoevski v R (2002) 202 CLR 115; [2001] HCA 4; Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52; R v Harker [2004] NSWCCA 427, considered.

2. The perceived need to address the Crown’s conduct more generally in relation to the service of tendency notices was not a matter relevant to the consideration of whether to dispense with the notice requirement in this case: at [29].

Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46; Clancy v Director of Public Prosecutions [2018] NSWCA 102, Tomko v Palasty (No 2) (2008) 71 NSWLR 61; [2007] NSWCA 369; Andelman v The Queen [2013] VSCA 25; (2013) 227 A Crim R; El-Haddad v R (2014) 88 NSWLR 93; [2015] NSWCCA 10, considered.

3.    The power exercised by the primary judge should be re-exercised. The proposed tendency evidence has significant probative value as well as particular importance in a trial involving historic sexual assaults. Allowing the Crown to rely on it is likely to shorten substantially the length of the hearing, and will not be unfair to the accused or any witness: at [32]—[33].

Judgment

1. THE COURT: Under the Director of Public Prosecutions Act 1986 (NSW), s 7(1) the principal functions of the Director of Public Prosecutions (DPP) include the institution and conduct on behalf of the Crown of prosecutions for indictable offences, and appeals in respect of any such prosecutions. In this case, the DPP appeals pursuant to Criminal Appeal Act 1912 (NSW), s 5F(3A) from the primary judge’s (Colefax SC DCJ) decision refusing to dispense with the notice requirements for the service of a tendency notice: R v AC [2018] NSWDC 127. The underlying proceedings are in respect of fourteen historic sexual assault offences relating to five female complainants, each of whom was a child at the time of those alleged offences. The Crown’s application was made under Evidence Act 1995 (NSW), s 100(1). The primary judge, having rejected that application, ordered that the charges on the indictment be severed in relation to each complainant and tried separately and consecutively. The primary judge’s decision was delivered on 21 May 2018 and the first of those trials is currently listed for hearing in the District Court on 25 June 2018.

2. At the conclusion of the argument of that appeal on 13 June 2018, the Court made the following orders:

1. Appeal allowed.

2. Set aside order 1 made on 21 May 2018.

3. Direct that paragraph 97(1)(a) of the tendency rule does not to apply to the tendency evidence which is the subject of the tendency notice served on 20 and 21 March 2018 notwithstanding the Crown’s failure to give notice of its intention to adduce that evidence within the time provided in accordance with s 99.

4. Order that the respondent’s notice of motion filed 22 March 2018 be dismissed.

5. Reasons reserved.

3. These are the reasons for the making of those orders.

The Crown’s omission to serve a tendency notice

4. The circumstances leading to the primary judge’s interlocutory ruling may be stated fairly briefly. Before October 2017, the prosecution brief containing the statements of the five complainants was served on AC. At about the same time, a tendency notice was prepared within the DPP’s office, but for some unexplained reason or due to oversight that notice was not served. On 19 October 2017, AC was arraigned for trial in the District Court. The fourteen offences involving the five complainants were charged on the one indictment, and AC pleaded not guilty to each charge. From that point, as the primary judge similarly observed at Judgment [7], the accused likely anticipated that the Crown would be relying on the evidence of each complainant as tendency evidence with respect to the counts involving each other complainant. A trial date was fixed for 26 March 2018.

5. The date by which the tendency notice was to be given was fixed by the application of Evidence Act, s 99, District Court Rules, Part 53 r 10C, and Uniform Civil Procedure Rules, r 31.5. The primary judge determined that date to have been 21 September 2017: Judgment [3]. Whether or not that was the correct date, the Crown did not comply with paragraph 97(1)(a) of the tendency rule.

6. At a listings hearing before Bennett DCJ on 22 February 2018, the respondent foreshadowed the making of an application for separate trials, and a direction was made that the Crown serve any tendency notice by 5pm on the following day. (It would seem that the parties accepted at that time, at least implicitly, that any such notice would have been effective for the purposes of s 97(1)(a)). That direction was not complied with. The tendency notice now relied on was not served until 20 and 21 March 2018. On the following day the matter was before the primary judge as list judge. On that day, the respondent filed a motion seeking orders that the counts on the indictment relating to each complainant be severed and tried separately. The proceedings were next before the primary judge on 26 March 2018, when the trial date was vacated because there was no judge available. His Honour agreed to hear the respondent’s motion. That hearing proceeded on 20 April and 2 May 2018.

The argument before the primary judge

7. The parties accepted that the outcome of the respondent’s motion for separate trials depended on whether the Crown should be permitted to lead the tendency evidence. In that context, the Crown made its oral application under s 100(1) for a direction that s 97(1)(a) not apply in relation to the tendency evidence it sought to lead, namely that of the five complainants whose statements had been served before October 2017.

8. During the course of the argument which followed, reference was made to the Crown’s non-compliance with the 22 February 2018 direction and to there being no evidence which explained why that had occurred, or why the tendency notice had not been served in August or September 2017 in accordance with the relevant rule. No issue was taken with the form of the notice as eventually served. Towards the conclusion of argument, the Crown filed and read an affidavit of a solicitor employed in the office of the DPP. That affidavit attached a tendency notice dated 13 September 2017 which, for reasons unexplained, had not been served at that time, although that solicitor apparently believed as at March 2018 that it had been served. The affidavit also indicated that solicitor, who had carriage of the matter within the DPP’s office, did not become aware of the making of the direction on 22 February until some time later. At the conclusion of the argument on 20 April 2018 the primary judge reserved his decision.

9. The respondent’s motion was relisted by the primary judge on 2 May 2018 for further argument concerning the significance of the Crown’s failure to comply with the rules in relation to service of the tendency notice and the Court’s direction of 22 February 2018, in circumstances where neither failure was explained. In the course of argument the primary judge referred to what is later described at Judgment [45] as the Crown’s consistent and persistent failure, at least in respect of proceedings brought in the Parramatta Registry of the District Court, to comply with the requirements regarding the timely service of tendency notices. As will become apparent, his Honour’s resolve to address that matter was at the heart of his decision to reject the Crown’s application.

10. In this Court, it is not necessary to inquire into the frequency of non-compliance by the Crown with tendency notice requirements, as experienced by his Honour. What may be accepted is that persistent non-compliance by the Crown is something about which busy trial judges in the District Court would be entitled to be concerned, and to express those concerns when it is relevant and appropriate to do so. The judgment of Howie J in R v Harker [2004] NSWCCA 427 at [62] (Santow JA and Bell J agreeing) provides an example of circumstances in which this Court considered it necessary to censure particular conduct of the Crown in the prosecution of that case. However, what must be decided in this appeal is whether recurrent non-compliance which the primary judge believed had occurred over some years provided a justification for the refusal to exercise the discretionary power to dispense with notice in circumstances where the Crown’s failure to comply with that requirement will not result in any prejudice to the respondent.

The primary judge’s reasoning

11. The primary judge rejected the Crown’s application under s 100(1) for two reasons, each of which his Honour held to be sufficient to justify that outcome. The first was that there was no sufficient explanation for the Crown’s delay in serving the tendency notice. The second was his Honour’s assessment that it was “not in the interests of justice” for that direction to be made. In so concluding, the determinative factor was the perceived need to “uphold the rule of law” by requiring strict compliance with s 97(1)(a) in this case to address past systemic, or at least frequent, non-compliance.

12. The primary judge’s reasoning in support of these conclusions proceeded as follows:

1. The Crown’s application was in substance for an extension of the time in which to serve the tendency notice to 21 March 2018. In relation to “extensions of time generally, two broad considerations need to be satisfied”. First, there must be a sufficient explanation for the delay “and (not or)” (underlining in original) secondly, the extension of time must be in the interests of justice. The Court of Appeal’s decision in Clancy v Director of Public Prosecutions [2018] NSWCA 102 is cited in support of these propositions: Judgment [30], [31];

2. As to the first consideration, there was no explanation for the Crown’s failure to comply with the requirement under the rules or the later direction. That was a “sufficient reason to refuse leave”: Judgment [32];

3. In weighing the “interests of justice”, his Honour considered four matters. First, addressing the probative value of the proposed tendency evidence, that it had “significant probative value which is not outweighed by any relevant prejudice”: Judgment [42]. Secondly, and as to a matter itself relevant to the assessment of that probative value (see BM v R [2017] NSWCCA 253), that it could not be said that there was a risk of concoction or contamination in relation to the evidence of the complainants: Judgment [43]. Thirdly, that the respondent raised no issue as to the prejudice in meeting the tendency evidence by reason of the late service of the notice: Judgment [7], [40]. Finally, and critically to the primary judge’s reasoning, that there was a “public interest in [upholding] the rule of law, including a requirement that the Crown adheres to the rules of Court and orders made by the Court”, and the “Crown (at least in respect of proceedings brought in the Parramatta Registry of the District Court) has for many years consistently and persistently failed to comply with the statutory requirements regarding the timely service of tendency notices”: Judgment [39], [45]. To exclude the evidence “on this occasion” is not to “punish” the Crown but rather to “uphold the rule of law which the Crown for far too long has failed to adhere to – and, in the present case at least, without any attempt to justify or explain itself”: Judgment [52].

The right of appeal under s 5F(3A)

13. There is no issue that the conditions giving rise to the right of appeal under s 5F(3A) are satisfied. The appeal is brought by the DPP on behalf of the Crown. The primary judge’s decision or ruling under s 100(1) was one concerning “the admissibility of evidence” within s 5F(3A): R v Harker at [30] – [32] (Howie J, Santow JA and Bell J agreeing). And finally, the inability to adduce the tendency evidence at the trial of the offences involving each complainant would substantially weaken the prosecution’s case. The evidence of one complainant is indirect but independent evidence making it more probable that the accused acted on the occasions and in the way charged in relation to the offences involving each other complainant: see IMM v The Queen (2016) 257 CLR 300 at [104] (Gageler J). In doing so, that evidence also makes more plausible the testimony of those other complainants and less plausible the testimony of the respondent: see Hughes v R at [95], [96] (Gageler J).

The grounds of appeal

14. The only ground of appeal relied on by the Crown in its notice of appeal was that:

In circumstances where his Honour accepted that there was no prejudice to the accused as a result of the late service of a tendency notice, and that the evidence of the complainants CC, CR, RP, DB and NM as tendency evidence had significant probative value not outweighed by any relevant unfair prejudice, his Honour erred in:

(a) refusing to dispense with the notice requirements for tendency evidence contained within s 97(1)(a) Evidence Act 1995; and

(b) ordering that the counts in relation to each complainant be tried separately.

15. At the hearing of the appeal, and in response to the respondent’s submission that this ground did not permit an argument that the primary judge erred in not considering the matters prescribed by Evidence Act, s 192(2), the Crown sought and was given leave to add as a further ground of appeal:

That the primary judge erred in failing to take into account as relevant considerations the matters prescribed in s 192(2) of the Evidence Act.

The Crown’s arguments

16. Two arguments are put in support of the first ground. They are that his Honour erred in concluding that a failure to explain the non-compliance and delay was “a sufficient reason to refuse leave”; and in treating as a factor relevant when weighing the “interests of justice”, that of ‘encouraging’ the Crown to comply with District Court rules and directions as to the service of tendency notices.

17. Turning to the Crown’s second ground, s 192(2) provides:

(2)    Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a)    the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b)    the extent to which to do so would be unfair to a party or to a witness, and

(c)    the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d)    the nature of the proceeding, and

(e)    the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

18. In support of this ground, the Crown submits that had the primary judge turned his mind to these matters he should have concluded that the following facts supported the making of a direction under s 100(1):

Allowing the evidence of each complainant to be led once in a single joint trial would substantially shorten the length of the hearing of the matters on the indictment: s 192(2)(a);

There was no unfairness to the respondent. As the matter had been vacated (on a basis unrelated to the later service of the notice) and the evidence had all been served in the original brief and a notice had been served on 20 March 2018, there was no prejudice to the respondent and non was asserted by him: s 192(2)(b);

The tendency evidence was of significant importance in each matter: s 192(2)(c);

The proceedings concern serious child sexual offences. In this regard, it is pertinent to note that the trial judge found the evidence to satisfy the substantive requirements of sections 97 and 101. The effect of the ruling is to strip these individual prosecutions of highly probative evidence: s 192(2)(d);

No further order or direction was required because adequate notice had in fact been given: s 192(2)(e).

The respondent’s arguments

19. Ultimately, the respondent’s arguments can be reduced to three propositions, which are responsive to each of the Crown’s arguments. First, it is submitted that the primary judge did not err in holding that the Crown had to satisfy the two “broad considerations” said to be required by the principles applied in Clancy at [7]. Secondly, it is said that his Honour did not err when assessing where the “interests of justice” lay in concluding that the refusal of the dispensation sought would send a message to the Crown that it should comply with the rules of the District Court with respect to the service of tendency notices. Thirdly, it is submitted that the primary judge did take into account each of the matters prescribed in s 192(2).

Disposition

20. Where a statutory provision confers a discretionary power and there is no positive indication of the considerations on which it is intended to be exercised (not this case), the discretion is “unconfined except so far as the subject matter and the scope and purpose of the statutory enactments” conferring it may enable the Court to pronounce specific matters to be “definitely extraneous to any objects the legislature could have had in view”: per Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; [1947] HCA 21. See also Mason J’s summary of relevant propositions in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40; [1986] HCA 40. Where the power is conferred on a court it must be exercised judiciously. As Brennan CJ, Gaudron and McHugh JJ emphasised in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313; [1995] HCA 36, that means, among other things, “that it must not be exercised arbitrarily, capriciously or to frustrate the legislative intent. Rather, it must be exercised in the interests of justice and within the confines of ‘the purposes for which it was entrusted’.”

21. Section 100(1) provides:

(1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97.

22. Two matters may be noted at the outset. First, in its terms, the power conferred is to “direct” that the tendency rule does not apply. Accordingly it is subject to Evidence Act, s 192: R v Harker at [34] (Howie J, Santow JA and Bell J agreeing); Stanoevski v R (2002) 202 CLR 115; [2001] HCA 4 at [41], [47] (Gaudron, Kirby and Callinan JJ). Thus, here there is a clear statement of the matters which the Court must take into account, but not in a way which suggests that those are the only matters to be taken into account: see Stanoevski at [44]. Secondly, although in its terms s 100(1) describes the subject of the direction as being the “tendency rule”, and notwithstanding the definition of that expression in the Dictionary to the Evidence Act (s 3), the closing words of s 100(1) and the language of s 97(2) make plain that the power to direct is concerned only with the notice requirement in s 97(1)(a).

23. Section 100(1) enables a court to relieve a party from the strictures of a notice requirement which if not complied with has the consequence that evidence cannot be adduced for the purpose of engaging tendency reasoning. The purpose of that notice requirement is first and foremost to give the person against whom the evidence is to be adduced a reasonable opportunity to address and respond to it, and its implications for the conduct of the proceedings. A second and related purpose, which is partly given effect by s 99 providing for the content of such a notice, is to direct attention to the tendency sought to be proved, and the circumstances and conduct relied on to establish it. In this latter respect the notice requirement is linked to the Court’s evaluation of the probative value of the evidence, and in criminal proceedings, whether it substantially outweighs any prejudicial effect: see Martin v State of NSW [2002] NSWCA 337 at [91] (Giles JA) and R v Harker at [41] (Howie J).

24. In relation to the utility of the tendency notice, Gageler J observed in Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52 at [105]:

The utility of the tendency notice goes beyond providing procedural fairness to other parties. The tendency notice provides the court, at the critical time of assessing the admissibility of tendency evidence, with a statement of the particular tendency which the party seeking to adduce the tendency evidence seeks to prove by it. The importance of explicitly identifying in the notice the particular tendency that is asserted, as Howie AJ put it in [Bryant v R (2011) 205 A Crim R 531; [2011] NSWCCA 26 at [50]], "should be obvious: how else is the court going to be able to make a rational decision about the probative value of the evidence". By identifying the particular tendency that the evidence is asserted to prove, the notice allows the court to evaluate the strength of the connection between the evidence and the tendency and the strength of the connection between the tendency and the fact in issue.

25. This significance of the tendency notice was also emphasised in Andelman v The Queen [2013] VSCA 25; (2013) 227 A Crim R 81 at [74], [75] (Maxwell P, Weinberg and Priest JJA); and in El-Haddad v R (2014) 88 NSWLR 93; [2015] NSWCCA 10 at [56] (Leeming JA, McCallum and R A Hulme JJ agreeing).

26. There are other indications in the statutory provisions as to the considerations that may be relevant to the giving or refusing of a direction under s 100(1). The matters s 192(2) requires be taken into account focus on the consequences for the parties or the proceedings of the making or refusing of the evidentiary direction sought. They include its effect on the “length of the hearing”, the extent to which the making of the direction would be “unfair to a party or to a witness” and the “importance of the evidence” sought to be adduced: paragraphs (a), (b) and (c). A more general indication is provided by the nature and subject matter of the power. In some cases it will not be possible to comply with the notice requirement. In others, notice could have been, but was not, given. When the power to dispense is engaged, the task of the Court is to weigh the interests of justice, in the circumstances of the particular case, taking account of the purposes for the notice requirement, other ways in which those purposes might be achieved, and any reason for dispensing with the requirement notwithstanding that those purposes might not be achieved. The decision in R v Harker is consistent with this understanding of the scope and purpose of the power. At [35], Howie J described as the “two most important considerations” the “probative value of the evidence and, secondly, any prejudice caused to the respondent by the failure of the Crown to give reasonable notice in accordance with s 97(1)(a)”.

27. In directing himself as to the matters to be taken into account, the primary judge treated the application before him as similar to one for an extension of time and as attracting the principles applied in Clancy v Director of Public Prosecutions at [7] (per Basten JA, Macfarlan and Meagher JJA agreeing). Mr Clancy’s application was for an extension of the time within which to commence proceedings for judicial review of a District Court judgment dismissing an appeal from his conviction in the Local Court (see Uniform Civil Procedure Rules 2005 (NSW), r 59.10). In dealing with that application, the Court of Appeal adopted the approach taken in cases involving an application for an extension of time to lodge an appeal. That approach, as the following statement of the Court of Appeal in Tomko v Palasty (No 2) (2008) 71 NSWLR 61 at [55]; [2007] NSWCA 369 (Basten JA, Hodgson and Ipp JJA relevantly agreeing) explains, starts from the position that such an application puts at risk a vested or substantive right of the respondent. In such a case, consideration of the reason for any delay is a relevant, but certainly not a necessarily determinative factor:

The approach to such an application [being for an extension of the time in which to institute an appeal] requires acknowledgment of the proposition that “the respondent to the application has a vested right to retain the judgment” which is proposed to be the subject of appeal: see Jackamarra v Krakouer (1998) 195 CLR 516 at [4] (Brennan CJ and McHugh J). In such cases, consideration must be given to four factors of general relevance, namely:

(1) the length of the delay;

(2) the reason for the delay;

(3) whether the applicant has a fairly arguable case, and

(4) the extent of any prejudice suffered by the respondent to the application:

see Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, referred to with approval, in such a context, in Jackamarra at (at 520 [6]-[7]).

28. Turning to the Crown’s arguments, each should be upheld. As to the first, his Honour erred in directing himself that a mandatory and determinative matter for the Crown’s application was that there be a sufficient explanation for its failure to comply with s 97(1)(a). Section 192(2) requires that five matters be taken into account. That is wholly inconsistent with the Court treating any further matter alone as determinative. In addition, in an application for an extension of the time in which to appeal, the length and reason for the applicant’s delay is relevant because of the challenge to the respondent’s acknowledged right to retain the judgment and, more significantly, is not a necessarily determinative consideration. Accordingly, Clancy does not involve the application of the approach the primary judge adopted.

29. As to the Crown’s second argument, the primary judge erred in treating as a relevant factor a perceived need to address the Crown’s conduct more generally in relation to the service of tendency notices by refusing its application for a dispensation in this case with a view to securing its compliance in the future with the relevant court rules; or, as his Honour described it, to upholding “the rule of law”. The subject matter of that consideration is beyond the purposes for which the power in s 100 is conferred. Those purposes are confined to the interests of justice as they are affected by the exercise or non-exercise of that power in the particular case in which it is sought to be engaged.

30. Furthermore, in proceeding by reference to this extraneous consideration the primary judge did not take account of the broader interests which the Crown may be seen to represent in this prosecution. As Brennan J noted in Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 at [49]-[50]:

The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. 

31. In relation to the present case the interests of the community and the complainants are not advanced if evidence available to the Crown which has a significant probative value is not able to be adduced in circumstances where it would not be unfair to the accused or any witness that the Crown be allowed to rely on the evidence.

32. As to the Crown’s third argument, the primary judge makes no reference to the matters prescribed in s 192(2) notwithstanding that in the course of argument his attention was drawn to that provision and the need to consider those matters. It is sufficient to mention the matters in paragraphs (a), (b) and (c). Whilst it was not necessary for his Honour to make specific reference to these matters (see R v Reardon [2002] NSWCCA 203; 186 FLR 1 at [18]-[33]), there is no reference or analysis in his Honour’s reasons as to the effect of the direction sought on the length of the hearing of the charges on the indictment, tried separately or together. In relation to paragraph (b), whilst there was reference to the absence of any prejudice to the respondent, the reasons contain no consideration of whether the making of the direction would be unfair to the complainants as witnesses. Finally, as to paragraph (c), and the “importance” of the evidence, whilst there was reference to its having significant probative value, there was no assessment of its importance in a proceeding involving historic sexual assaults and a number of female complainants who were children at the time of those alleged assaults. The particular importance of such evidence is referred to by Gageler J in Hughes at [95]-[96].

33. In the result, this Court must vacate the primary judge’s decision refusing to dispense with the notice requirements and re-exercise the discretion conferred by s 100: Criminal Appeal Act, s 5F(5). Taking account of the matters in s 192(2), which include that allowing the evidence of each complainant to be led in a single joint trial is likely to shorten substantially the length of the hearing of the matters on the indictment, that the proposed tendency evidence has significant probative value as well as the importance referred to above, and that it would not be unfair to the accused or any witness that the Crown be allowed to rely on that evidence, the Crown’s application for a direction under s 100(1) should be granted.

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Decision last updated: 27 June 2018