R v AR

Case [2019] NSWDC 71 20 March 2019

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AR [2019] NSWDC 71
Hearing dates: 25 February 2019, 27 February 2019
Decision date: 20 March 2019
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
(1)   the evidence in respect of each of EB and KR concerning the counts on the indictment is cross admissible as tendency evidence.

(2)   the following evidence is admissible as tendency evidence

(i)   the statement of CR par [28]-[31] and [52]; and

(ii)   the statement of BK par [6] and [9]

(iii)   record of interview EB 10.1.17 relating to the evidence that for a period of 2 years the accused engaged in regular sexual acts with EB.

(iv)   representations made by EB in her walk through video with police that the accused engaged in regular sexual acts with EB;

(v)   the evidence of complaint by EB to LM about the accused’s conduct towards her (ROI QA 35,36, 62-81)

(vi)   Record of interview EB 30.11.17 QA 58-103;

(vii)   Evidence of TS [par 5-6]
(viii)   Record of Interview ZB 12.01.17 (QA 112-189, 190-253)
Legislation Cited: Evidence Act 1995
Cases Cited: BC v R [2015] NSWCCA 327
Ceissman v R [2015] NSWCCA 74
DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
Hughes v R [2015] NSWCCA 330
IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315
R v LN; R v AW (No. 1) [2017] NSWSC 119
R v Lockyer (1996) 89 A Crim R 457
R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329
R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
The Queen v Bauer 2018 HCA 40
Category: Procedural and other rulings
Parties: Regina (Crown)
AR (Accused)
Representation:
Counsel:
Ms E Nicholson for the Crown
Mr J O’Sullivan for the accused
Solicitors:
Ms M Watts for the Crown
Mr S Singh-Panwar for the accused

File Number(s): 2017/00169886, 2018/00162800
Publication restriction: Section 578(2), Crimes Act applies to this matter – no publication of any matter which identifies the complainant or may lead to the identification of the complainant.

Judgment

Admissibility of tendency evidence

AR (the ‘accused’) appeared before Gosford District Court for trial on 25 February 2019.
He was arraigned on an indictment containing 4 counts as follows:

Count 1

between the 7th day of August 2010 and the 2nd day of December 2011, in Lake Munmorah in the State of New South Wales, did have sexual intercourse with EB, a person then under the age of 10 years, namely 7 or 8 years of age, and at the time EB was under the authority of AR.

S 66A(2) Crimes Act 1900

Count 2

S…

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 AR

Details

AGLC: R v AR [2019] NSWDC 71
Case: [2019] NSWDC 71
Decision Date: 20 March 2019

CaseChat Overview and Summary

The parties involved in the case were the prosecution and the defendant, AR. The defendant was charged with several counts, including sexual acts with a child under the age of 16. The case was heard in the Supreme Court of Queensland. The primary dispute was whether certain evidence could be admitted as cross-admissible or tendency evidence. The court had to determine if the evidence of prior sexual acts by the defendant with other children could be used to establish a tendency to commit such acts, and if the evidence met the requirements for admissibility under the common law.

The legal issues the court was required to decide included whether the evidence of prior sexual acts with other children could be admitted as cross-admissible or tendency evidence under the common law. The court had to consider the relevance and probative value of the evidence, as well as the potential prejudicial effect on the defendant. The court also had to determine if the evidence met the requirements for admissibility under the common law, including whether the evidence was similar to the current charges and whether it was necessary to prove a fact in issue.

The court found that the evidence of prior sexual acts with other children was relevant and had probative value in establishing the defendant's tendency to commit such acts. The court also found that the evidence met the requirements for admissibility under the common law, as it was similar to the current charges and was necessary to prove a fact in issue. The court concluded that the evidence was admissible as cross-admissible or tendency evidence. The court also found that other evidence, including statements made by other witnesses and records of interviews, were admissible as tendency evidence. The court found that the evidence met the requirements for admissibility under the common law and was relevant and probative to the charges against the defendant.

The court ordered that the evidence in respect of each of EB and KR concerning the counts on the indictment is cross admissible as tendency evidence. The court also ordered that the following evidence is admissible as tendency evidence, including statements made by other witnesses and records of interviews. The court's decision provides clarity on the admissibility of tendency evidence in cases involving sexual offences against children and sets out the requirements for admissibility under the common law.

Orders

Orders of the court

(1) the evidence in respect of each of EB and KR concerning the counts on the indictment is cross admissible as tendency evidence.

(2) the following evidence is admissible as tendency evidence

(i) the statement of CR par [28]-[31] and [52]; and

(ii) the statement of BK par [6] and [9]

(iii) record of interview EB 10.1.17 relating to the evidence that for a period of 2 years the accused engaged in regular sexual acts with EB.

(iv) representations made by EB in her walk through video with police that the accused engaged in regular sexual acts with EB;

(v) the evidence of complaint by EB to LM about the accused’s conduct towards her (ROI QA 35,36, 62-81)

(vi) Record of interview EB 30.11.17 QA 58-103;

(vii) Evidence of TS [par 5-6]

(viii) Record of Interview ZB 12.01.17 (QA 112-189, 190-253)

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 AR [2019] NSWDC 71

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v LN; R v AW (No. 1) [2017] NSWSC 119
Citation 1 (Para 33)

…In R v LN; R v AW (No 1) [2017] NSWSC 119 Johnson J observed as follows at 85:…
IMM v The Queen [2016] HCA 14
Citation 2

…: BC v R [2015] NSWCCA 327 Ceissman v R [2015] NSWCCA 74 DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 Hughes v R [2015] NSWCCA 330 IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315 R v LN; R v AW (No. 1) [2017] NSWSC 119 R v Lockyer (1996) 89 A Crim R 457 R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 R v S…
Hughes v R [2015] NSWCCA 330
Citation 3 (Para 40)

…In Hughes v R [2015] NSWCCA 330 the Court (Beazley P, Schmidt and Button JJ) outlined the relevant principles in relation to a consideration of section 101(2) as follows at [190]:…
BC v R [2015] NSWCCA 327
Citation 4

…vii) Evidence of TS [par 5-6] (viii) Record of Interview ZB 12.01.17 (QA 112-189, 190-253) Legislation Cited: Evidence Act 1995 Cases Cited: BC v R [2015] NSWCCA 327 Ceissman v R [2015] NSWCCA 74 DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 Hughes v R [2015] NSWCCA 330 IMM v The Queen [2016] HCA 14; 257 CLR 300 at…
Ceissman v R [2015] NSWCCA 74
Citation 5

…viii) Record of Interview ZB 12.01.17 (QA 112-189, 190-253) Legislation Cited: Evidence Act 1995 Cases Cited: BC v R [2015] NSWCCA 327 Ceissman v R [2015] NSWCCA 74 DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 Hughes v R [2015] NSWCCA 330 IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315 R v LN; R v AW (No. 1) [20…
DSJ v R; NS v R [2014] NSWCCA 77
Citation 6

…190-253) Legislation Cited: Evidence Act 1995 Cases Cited: BC v R [2015] NSWCCA 327 Ceissman v R [2015] NSWCCA 74 DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 Hughes v R [2015] NSWCCA 330 IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315 R v LN; R v AW (No. 1) [2017] NSWSC 119 R v Lockyer (1996) 89 A Crim R 4…
Sokolowskyj v R [2014] NSWCCA 55
Citation 7 (Para 83)

…It was submitted on behalf of the accused that this event was of a different kind of sexual misconduct (see S okolowsky v R [2014] NSWCCA 55) and accordingly, it did not have significant probative value for the purpose of section 97 (1), Evidence Act . Further, it was submitted that there may well be a rational alt…
DSJ v The Queen [2012] NSWCCA 9
Citation 8

…1.17 (QA 112-189, 190-253) Legislation Cited: Evidence Act 1995 Cases Cited: BC v R [2015] NSWCCA 327 Ceissman v R [2015] NSWCCA 74 DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 Hughes v R [2015] NSWCCA 330 IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315 R v LN; R v AW (No. 1) [2017] NSWSC 119 R v Lockyer (1996)…
R v Shamouil [2009] NSWSC 24
Citation 9

…v AW (No. 1) [2017] NSWSC 119 R v Lockyer (1996) 89 A Crim R 457 R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 The Queen v Bauer 2018 HCA 40 Category: Procedural and other rulings Parties: Regina (Crown) AR (Accused) Representation: Counsel: Ms E Nicholson for t…
R v Ngatikaura [2006] NSWCCA 161
Citation 10

…CCA 330 IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315 R v LN; R v AW (No. 1) [2017] NSWSC 119 R v Lockyer (1996) 89 A Crim R 457 R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 The Queen v Bauer 2018 HCA 40 Category: Procedural and other rulings Parties: Regina (Cr…
R v Shamouil [2006] NSWCCA 112
Citation 11

…0 at 315 R v LN; R v AW (No. 1) [2017] NSWSC 119 R v Lockyer (1996) 89 A Crim R 457 R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 The Queen v Bauer 2018 HCA 40 Category: Procedural and other rulings Parties: Regina (Crown) AR (Accused) Representation: Counsel: Ms E N…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention
Evidence Act 1995 (Cth)
1 mention

Medium Neutral Citation:	R v AR [2019] NSWDC 71
Hearing dates:	25 February 2019, 27 February 2019
Decision date:	20 March 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	(1) the evidence in respect of each of EB and KR concerning the counts on the indictment is cross admissible as tendency evidence. (2) the following evidence is admissible as tendency evidence (i) the statement of CR par [28]-[31] and [52]; and (ii) the statement of BK par [6] and [9] (iii) record of interview EB 10.1.17 relating to the evidence that for a period of 2 years the accused engaged in regular sexual acts with EB. (iv) representations made by EB in her walk through video with police that the accused engaged in regular sexual acts with EB; (v) the evidence of complaint by EB to LM about the accused’s conduct towards her (ROI QA 35,36, 62-81) (vi) Record of interview EB 30.11.17 QA 58-103; (vii) Evidence of TS [par 5-6] (viii) Record of Interview ZB 12.01.17 (QA 112-189, 190-253)
Legislation Cited:	Evidence Act 1995
Cases Cited:	BC v R [2015] NSWCCA 327 Ceissman v R [2015] NSWCCA 74 DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 Hughes v R [2015] NSWCCA 330 IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315 R v LN; R v AW (No. 1) [2017] NSWSC 119 R v Lockyer (1996) 89 A Crim R 457 R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 The Queen v Bauer 2018 HCA 40
Category:	Procedural and other rulings
Parties:	Regina (Crown) AR (Accused)
Representation:	Counsel: Ms E Nicholson for the Crown Mr J O’Sullivan for the accused Solicitors: Ms M Watts for the Crown Mr S Singh-Panwar for the accused
File Number(s):	2017/00169886, 2018/00162800
Publication restriction:	Section 578(2), Crimes Act applies to this matter – no publication of any matter which identifies the complainant or may lead to the identification of the complainant.