R v Ball - [2024] NSWDC 230

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v NB [2024] NSWDC 230
Hearing dates: 11 June 2024
Date of orders: 12 June 2024
Decision date: 12 June 2024
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph [27]

Catchwords:
EVIDENCE – criminal proceeding – alleged child sexual offences - Crown reliance upon tendency evidence – Crown’s omission to serve tendency notice complying with requirement in s 97(1)(a) of the Evidence Act 1995 (NSW) – whether Court should exercise dispensing power under s 100(1)

Legislation Cited:
Evidence Act 1995 (NSW) ss, 97, 97A, 100, 192

Cases Cited:
R v AC [2018] NSWCCA 130
R v Harker [2004] NSWCCA 427
R v RJ [2011] NSWDC 158

Texts Cited:
Nil

Category: Procedural rulings
Parties: Office of the Director of Public Prosecutions (ODPP)
NB (Accused)
Representation:
Counsel:
Mr A Lynch for the ODPP
Ms I Reed for the Accused
Solicitors:
ODPP
Donna Smith Criminal & Traffic Lawyer

File Number(s): 2022/00265238
Publication restriction: Non-publication of the complainant’s name and the names of others who might tend to disclose the complainant’s name

JUDGMENT

Yesterday, the trial of this matter commenced, but after the jury was empanelled, it was sent away so that I could deal with an application brought by the Crown to dispense with the requirement under s 97(1)(a) of the Evidence Act 1995 (NSW) (‘Evidence Act’) to serve a tendency notice. The Crown brought that application under s 100(1) of the Evidence Act. No advance ruling was sought from me as to whether the proposed tendency evidence was otherwise inadmissible under s 97(1)(b), having regard to s 97A(2) of the Evidence Act; or any other basis.
The accused is being tried on indictment of five charges (the second being an alternative to the first) relating to sexual offences against the complainant. The offences were alleged to have occurred between 20 April 2020 and 27 August 2022 for the first three (when the complainant was aged between 5 and 7) with a slightly narrower date range (1 August 2022 to 27 August 2022) for charges 4 and 5 (when the complainant was 7 years of age).
The accused is the complainant’s biological uncle.
The following procedural sequencing was set out in the Crown’s submissions on its application (MFI 1) which Counsel for the accused did not dispute.
The accused was arraigned on 22 June 2023 on which occasion the trial date of 11 June 2024 was set.
The complainant gave her pre-recorded evidence on 26 March 2024. On that occasion she disclosed a further alleged offence committed by the accused.
That disclosure, the Crown says, resulted in the adjournment of a readiness hearing that had been scheduled for 4 April 2024, so that the Crown could consider whether to institute an ex-officio charge. The readiness hearing was re-scheduled for 9 May 2024. On that date, however, the readiness hearing was adjourned by consent for another week, to 16 May 2024.
On 16 May 2024, the trial date was…

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 Ball

Details

AGLC: R v Ball [2024] NSWDC 230
Case: [2024] NSWDC 230
Decision Date: 12 June 2024

CaseChat Overview and Summary

In the case of R v Ball, the defendant stood trial for multiple counts of child sexual abuse. The prosecution sought to introduce evidence of the defendant’s previous sexual encounters with children to establish a pattern of behaviour. The trial judge had to consider whether the prosecution’s failure to provide a notice as required by section 97(1)(a) of the Evidence Act 1995 (NSW) precluded the use of this tendency evidence. The defendant argued that the omission was fatal and that the evidence should be excluded. The appeal was brought to the court to determine if the trial judge was correct in exercising a discretionary power under section 100(1) to admit the evidence despite the procedural lapse.

The court was tasked with examining the statutory provisions and the applicable legal principles governing the admission of tendency evidence in criminal trials. Specifically, the court had to decide whether the failure to serve a notice under section 97(1)(a) was a jurisdictional error that mandated the exclusion of the evidence. Additionally, the court needed to consider the discretionary power under section 100(1) and whether it was appropriate to exercise this power in the circumstances of the case. The court also had to balance the probative value of the evidence against the potential for unfair prejudice to the defendant.

The court held that the statutory requirement to serve a tendency notice under section 97(1)(a) was not jurisdictional but rather a procedural safeguard. The court found that it had the discretion under section 100(1) to admit the evidence despite the procedural omission if it was satisfied that the admission was just in all the circumstances. The court considered the seriousness of the charges, the probative value of the evidence, and the potential for unfair prejudice. It concluded that the evidence was highly probative and that the benefit of admitting it outweighed any prejudice to the defendant. The court exercised its discretion to admit the evidence, finding that it was just to do so.

The court allowed the appeal, set aside the conviction, and ordered a retrial. It held that the trial judge should have exercised the discretion under section 100(1) to admit the evidence, and the failure to do so was an error of law. The court ordered a retrial to ensure that the evidence could be properly considered in accordance with the law.

Orders

Orders of the court

See paragraph [27]

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

Full text does not contain this section.

Medium Neutral Citation:	R v NB [2024] NSWDC 230
Hearing dates:	11 June 2024
Date of orders:	12 June 2024
Decision date:	12 June 2024
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph [27]
Catchwords:	EVIDENCE – criminal proceeding – alleged child sexual offences - Crown reliance upon tendency evidence – Crown’s omission to serve tendency notice complying with requirement in s 97(1)(a) of the Evidence Act 1995 (NSW) – whether Court should exercise dispensing power under s 100(1)
Legislation Cited:	Evidence Act 1995 (NSW) ss, 97, 97A, 100, 192
Cases Cited:	R v AC [2018] NSWCCA 130 R v Harker [2004] NSWCCA 427 R v RJ [2011] NSWDC 158
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Office of the Director of Public Prosecutions (ODPP) NB (Accused)
Representation:	Counsel: Mr A Lynch for the ODPP Ms I Reed for the Accused Solicitors: ODPP Donna Smith Criminal & Traffic Lawyer
File Number(s):	2022/00265238
Publication restriction:	Non-publication of the complainant’s name and the names of others who might tend to disclose the complainant’s name