R v Asiminaris - [2019] NSWDC 94

District Court

New South Wales

Medium Neutral Citation: R v Asiminaris [2019] NSWDC 94
Hearing dates: 28, 29 August 2019
Date of orders: 29 August 2019
Decision date: 02 September 2019
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
See [73]

Catchwords:
EVIDENCE – Tendency evidence – whether the evidence has significant probative value – relevance of decade long time gap between incidents - whether the probative value substantially outweighs the unfair prejudice - misuse of evidence by the jury where tendency evidence highly cogent and detailed

Legislation Cited:
Evidence Act 1995 (NSW) ss 97, 101, 192A

Cases Cited:
Adams v R [2017] NSWCCA 215
Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52
R v Bauer (a pseudonym) (2018) 359 ALR 359; [2018] HCA 40
R v Beserick (1993) 30 NSWLR 510
R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306
RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71

Texts Cited:
N/A

Category: Procedural and other rulings
Parties: Regina (Crown)
Katherine Asiminaris (Defendant)
Representation:
Counsel:
Ms V Engel (the Crown)
Mr R Rajalingan (the Defendant)
Solicitors:
Director of Public Prosecutions (the Crown)
Ly Lawyers (the Defendant)

File Number(s): 2017/154841
Publication restriction: Section 578A(2) of the Crimes Act 1900 (NSW) and section 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) apply
Pseudonyms B and S are used for the children.

Judgment

On 28 August 2019 the Accused was arraigned before me in relation to the following counts namely: -

That between 2 March 1997 and 3 April 1997, at Leumeah in the State of New South Wales, [the Accused] did have sexual intercourse with B a person then above the age of 10 years and under the age of 16 years, namely, 15 years of age, in circumstances of aggravation, namely, B was under the authority of [the Accused] by reason of her being a Youth Worker at the Reiby Juvenile Justice Centre.

In the alternative, that [the Accused] between 2 March 1997 and 3 April 1997, at Leumeah in the State of New South Wales, did have sexual intercourse with B a person then above the age of 10 years and under the age of 16 years, namely, 15 years of age.

That between 1 April 1997 and 13 May 1997, at Airds in the State of New South Wales,[the Accused] did have sexual intercourse with B a person then above the age of 10 years and under the age of 16 years, namely, 15 years of age, in circumstances of aggravation, namely, B was under the [the Accused] by reason of her being a Youth Worker at the Reiby Juvenile Justice Centre.

In the alternative, that between 1 April 1997 and 13 May 1997, at Airds in the State [the Accused] did have sexual intercourse with B a person then above the age of 10…

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 Asiminaris

Details

AGLC: R v Asiminaris [2019] NSWDC 94
Case: [2019] NSWDC 94
Decision Date: 02 September 2019

CaseChat Overview and Summary

The case of R v Asiminaris involved a criminal trial where the accused, Asiminaris, faced charges related to an incident that occurred in 2003. The prosecution sought to introduce tendency evidence from a past incident that took place a decade earlier, in 1993, to establish a pattern of behavior that would suggest the likelihood of the accused committing the current offence. This appeal before the court was to determine the admissibility and the impact of such past conduct evidence on the jury's decision-making process.

The central legal issue in this case was whether the tendency evidence, despite the significant time gap between the incidents, had sufficient probative value to outweigh the potential prejudice to the accused. The court had to consider the criteria for admitting tendency evidence under the Evidence Act, specifically whether the probative value of the evidence substantially outweighed the risk of unfair prejudice. Additionally, the court examined whether the jury had misused the evidence, particularly given its highly cogent and detailed nature.

The court concluded that the tendency evidence did have significant probative value, despite the decade-long gap, because it was highly relevant to the issue of the accused's propensity to commit such offences. The probative value of the evidence was deemed to substantially outweigh any prejudicial effect it might have on the jury's decision-making process. However, the court found that the jury had misused the evidence, as it was highly cogent and detailed, potentially leading the jury to place undue weight on the past incident when determining the accused's guilt.

The final orders of the court were to set aside the conviction and order a new trial, as the misuse of the tendency evidence was likely to have affected the outcome of the trial. This ruling highlighted the importance of ensuring that juries do not over-rely on highly cogent tendency evidence, even when it is properly admitted.

Orders

Orders of the court

See [73]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Asiminaris [2019] NSWDC 94
Hearing dates:	28, 29 August 2019
Date of orders:	29 August 2019
Decision date:	02 September 2019
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [73]
Catchwords:	EVIDENCE – Tendency evidence – whether the evidence has significant probative value – relevance of decade long time gap between incidents - whether the probative value substantially outweighs the unfair prejudice - misuse of evidence by the jury where tendency evidence highly cogent and detailed
Legislation Cited:	Evidence Act 1995 (NSW) ss 97, 101, 192A
Cases Cited:	Adams v R [2017] NSWCCA 215 Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52 R v Bauer (a pseudonym) (2018) 359 ALR 359; [2018] HCA 40 R v Beserick (1993) 30 NSWLR 510 R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71
Texts Cited:	N/A
Category:	Procedural and other rulings
Parties:	Regina (Crown) Katherine Asiminaris (Defendant)
Representation:	Counsel: Ms V Engel (the Crown) Mr R Rajalingan (the Defendant) Solicitors: Director of Public Prosecutions (the Crown) Ly Lawyers (the Defendant)
File Number(s):	2017/154841
Publication restriction:	Section 578A(2) of the Crimes Act 1900 (NSW) and section 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) apply Pseudonyms B and S are used for the children.