R v Bates

[2024] NSWDC 612

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Bates [2024] NSWDC 612

Hearing dates:

9 October 2024

Date of orders:

9 October 2024

Decision date:

09 October 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Provisional relevance – The defence can tender copies of communications even though their asserted author contests their authenticity. Judicial directions will be given as to how the jury is to assess the exhibit provisionally admitted

Catchwords:

CRIMINAL PROCEDURE — Trial — Voir dire — Admissibility of evidence — Judge’s role as evidentiary gatekeeper — Provisional admission of evidence in jury trial — Directions to jury

EVIDENCE — Documentary evidence — Authenticity of documents — Tender of documents — Jury to make preliminary assessment of authenticity

EVIDENCE — Witness evidence — Affidavits — Provisional relevance — Application of ss 57, 58 Evidence Act 1995 (NSW)

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Evidence Act 1900 (NSW)

Evidence Act 1995 (NSW)

Texts Cited:

RP Croom-Johnson and GFL Bridgman, Taylor on Evidence (8th ed, 1894, Sweet and Maxwell Ltd)

S Odgers, Uniform Evidence Law (19th ed, 2024, Thomson Reuters)

Category:

Procedural rulings

Parties:

Tyler Bates (the accused)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
R Mitchell (for the accused)

Solicitors:
Legal Aid (NSW) (for the offender)
I Maxwell-Williams solicitor advocate for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/298869

JUDGMENT – ex tempore revised

Introduction

1. Tyler Bates is presently on trial before a jury in the District Court sitting at Broken Hill. He has said he is not guilty of a count that: On 6 October 2022, he had sexual intercourse with the complainant without her consent, knowing she was not consenting. We are now in day 5 of that trial.

2. The critical issue at trial was distilled in the Crown’s written submissions, that:

“This is a trial about the state of mind of the complainant and the accused on 6 October 2022 when sexual intercourse occurred. The facts in issue in this trial are whether the complainant was consenting and whether the accused knew she was not consenting.”: Voir Dire MFI 4, par 17.

3. The complainant has given evidence that unequivocally asserts that she did not consent, and that her actions conveyed to Mr Bates that lack of consent. In a record of interview (‘ERISP’) Mr Bates asserts that nothing said or done by the complainant indicated lack of consent, and that her participation in the act of sexual intercourse was willing and cooperative.

4. At the outset of the trial, I was asked to allow some sexual relationship evidence pursuant to s 294CB Criminal Procedure Act 1986 (NSW). I was led to believe that the nature and extent of any prior relationship between the complainant and the accused was relevant, and important, to their perceptions of what was said and done in the bedroom immediately before, on 6 October, in relation to the critical issue – consent and knowledge of absence of consent.

5. The complainant has asserted that their “relationship” was as boyfriend / girlfriend but without sex and only for short specific periods. She said she had never had sexual intercourse with anyone. The accused in his ERISP, which will be tendered in the prosecution case, asserted the “relationship” occurred over a much longer period and did involve sexual intercourse.

6. After I had made a ruling allowing that limited evidence, Ms Mitchell, counsel for Mr Bates, put before me written submissions as to the proposed cross-examination of the complainant: Criminal Procedure Act, s294(6). I allowed some limited cross-examination.

7. The defence case, from the outset, as opened to the jury, was that the complainant’s history of their friendship and the periods in which they were boyfriend and girlfriend was wrong. The defence case is that there was significant and extensive communication between them over a number of years both in person but, more importantly, electronically.

8. The complainant, in cross-examination, did not accept that she was the author of the bulk copies of electronic communications which were shown to her, and purported on their face to come from her. She would not accept they were her communications unless the documents displayed a Facebook logo depicting her profile photograph or profile symbol. She said that her Facebook account had previously been “hacked”.

9. A number of folders containing of a large number of documents containing both Facebook and text messages were put before her. The complainant was given the opportunity to read them, overnight. The next day she adhered to her earlier evidence that if they failed to display her profile picture, she did not, and would not, accept they were her communications. Further, she did not accept that the phone number displayed underneath the blank profile picture space was hers. There is evidence contradicting those assertions now before the Court.

10. Clearly, given the matters in dispute, what happened on 6 October 2022 did not occur in a vacuum. With the exception of the matters for which an exception pursuant to s 294CB was sought the context / relationship evidence was not led to prove the complainant’s state of mind or the state of mind of the accused at the time of the incident. Rather, as is common, “relationship” evidence was led by the Crown to make the complainant’s evidence more understandable and place the specific allegations in proper context.

11. It is accepted that both the accused and the complainant have expressed different opinions about any relationship they may have had. The accused, in his ERISP, gives a very different version of the general relationship over years to that given in evidence by the complainant.

12. The jury’s assessment about the state of mind of the parties will be, in the Crown case, informed by the evidence from the complainant of the absence of any physical sexual interaction with anyone, and the accused. The defence say that the assessment of the accused’s state of mind is critical because of what he said in his ERISP.

13. The prosecution case is that such differences would have trifling consequences to the critical matters in issue. But the Crown accepted that they could not have objected to questions being put to the complainant about those general context matters, and the testing of the relationship evidence admitted in its case.

14. If the complainant had accepted the assertion made by Ms Mitchell in cross-examination about the nature of the relationship set out in the documents she was shown, affirmative answers would have been relevant to the assessment of the probability of facts in issue. And as such, the documents would have been relevant and thus admissible. They would show that what was said by the accused in his ERISP was a more accurate description of places and times than that given by the complainant. Although as Madam Crown notes, what he said in his interview was, as it went back over years, necessarily vague as to places and times.

15. Issues relating to, not just actual knowledge of lack of consent, but recklessness and genuine belief, on reasonable grounds that she was consenting will be before the jury. Those matters have just been resolved in a separate consent ruling about the written elements to go to the jury. If the complainant had accepted the communications in the documents she was shown and which were marked for identification, reflected a communication between her and the accused, that evidence would have had some indirect relevance to resolving the disputed evidence.

16. Because the complainant did not accept any of the non-profile-picture documents, the defence were unable to elicit that material and tender it while the prosecution case was proceeding, as is now often the case.

17. The defence, now in their case, seek to tender a number of documents taken from the large number of documents shown to the complainant during cross-examination. The accused now seeks to prove and establish what they failed to achieve in cross-examination of the complainant.

18. They propose to do so, at least on the information presently available to me, by calling the accused’s solicitor to give evidence that she accessed the accused’s Facebook account and the numbers and codes given her and tender those documents through her. That number is known to be the number on the phone of the accused seized by police. An affidavit setting out what is proposed and annexing the documents said to be relevant and admissible was marked as a Voir Dire Exhibit E.

19. The prosecution submit that the process foreshadowed could not allow for the admission of the evidence. They say bluntly that only way that the material – which is annexed as B, D, E and F to the solicitor’s affidavit – could get before the jury is if the accused himself gave evidence of their contents, and through him, the documents were tendered, as only he could be cross-examined as to their veracity and authenticity.

20. Ms Mitchell submits that the evidence has some relevance. If it is relevant to a fact in issue, either directly or indirectly, and is otherwise admissible. She asserts that she is not bound by the Crown’s opinion as to how her case should be proved.

21. The question remains: As the contents of the disputed document having some relevance, how can they be admitted into evidence?

Application of the Evidence Act 1995 (NSW)

22. The Evidence Act, in 1995, rewrote the rules with regard to documents and the tender of documents.

23. I am not in a position to engage in an exegesis on the old Evidence Act 1900 (NSW), and the changes that were wrought by the new Act. It is late in the afternoon. I am in the middle of a trial at Broken Hill. The Court library has a copy of RP Croom-Johnson and GFL Bridgman, Taylor on Evidence (8th ed, 1894, Sweet and Maxwell Ltd) and S Odgers, Uniform Evidence Law (19th ed, 2024, Thomson Reuters) although we have access to the on-line edition, when we have power.

24. I must focus on the terms of the Evidence Act 1995 itself, and its terms. There are, in Mr Odgers’ current volume, some authorities, but they appear to show different conclusions about variations on the current issue have been drawn by different Courts. There is nothing directly on point.

25. Just because the document was shown to a witness does not make it admissible: Evidence Act 1995, s 45(4). It must be admissible pursuant to Chapter 3, Evidence Act 1995.

26. Section 48(1) Evidence Act s1995 says that a party may adduce evidence of the contents of a document by tendering the documents in question. That is what the defence propose to do. The Evidence Act1995 does not speak about the authenticity of documents.

27. To be admissible, evidence must be relevant: Evidence Act 1995, s 55. The test of relevance is a fairly broad one. It is clear that the contest as to how the two young people interacted prior to 6 October 2022 is still live in these proceedings. The defence are not bound by any concessions made by the prosecution about how they will argue their case or refer to these issues.

28. Section 55 speaks of evidence that could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue.

29. I am acutely aware that regardless of whether the evidence is admitted or not, my duty is to focus the jury’s attention on the state of mind of the complainant and accused at the relevant time. I must give them appropriate directions as to consent and absence of consent. Those directions will include how to avoid misconceptions about the evidence.

30. Where the authenticity of a document is challenged or must be established, s 57 Evidence Act 1995 has a role to play:

“If the determination of the question of whether evidence adduced by a party is relevant depends on the court making another finding (including a finding the evidence is what the party claims it to be), the court may find that the evidence is relevant--

(a) if it is reasonably open to make that finding…”

31. What the defence proposed to do is put the documents before the jury. They would then ask them to draw an inference from those documents that they are genuine communications from, and made by, the complainant. In order achieve their aim, it may require more documents to be tendered than would ordinarily be the case if this was a judge alone trial. It will, they submit, be necessary that the documents include puerile or innocuous conversations, because those conversations by their very nature could rebut any suggestion that they were false or manufactured.

32. An example is a Facebook interchange in Annexure B between the two correspondents while the accused is at a football match. There are photographs attached, that, in my opinion, clearly indicate who was communicating with the other; one of those people could only be the complainant.

33. It would it is submitted be “reasonably open” to a jury to draw a similar conclusion from that correspondence, and text messages of a similar type of conversation in Annexure F. It is the very banality of the conversations which establish their authenticity. It will be necessary, therefore, to take a selection from the various periods to convey that authenticity.

Determination

34. I am the evidentiary gatekeeper here. As s 57 Evidence Act 1995 makes clear, if it is reasonably open for the jury, as the triers of fact, to reach that conclusion, then that conclusion is for them to make.

35. Facilitation of proof provisions also apply. Section 161, “electronic transmissions”, allows for the trier of fact to draw conclusions from what is set out in the document. If the document purports to contain a record of an electronic communication, it is presumed, unless evidence sufficient to raise a doubt about the presumption is adduced, that the communication was sent or made in the form of electronic communication, was sent or made by, and on behalf of the person or on whose behalf it appears the document to have been sent or made.

36. The jury, as the trier of fact, are entitled to draw inferences as to relevance, enabling them to examine the document and draw any reasonable inference from it, including an inference as to its authenticity or identity: Evidence Act 1995, s 58. A similar provision about facilitation of proof, so far as inferences are concerned, can be found in s 183 Evidence Act 1995.

37. A prosecution objection was also taken to the accused’s solicitor giving the evidence on the basis that it puts her in an “invidious” position of both being the solicitor for the accused and a witness in her client’s proceedings. That fact, “invidious” or not, does not prevent a solicitor giving evidence in proceedings.

38. A submission was made that if what was proposed – leading the evidence through the solicitor – was allowed it would preclude the prosecution from cross-examining the accused. It is not, with great respect, for the Crown to tell the defence how to present their case. There is no rule of law or practice that requires an accused to present himself for cross-examination.

39. That the documents are tendered does not mean that the prosecution cannot, as they would seek to do, challenge their authenticity or relevance in submissions. No question of unfairness requiring exclusion arises: Evidence Act 1995, s 135.

40. The prevarication and obstinance of the complainant could similarly be criticised as creating an unfairness for the defence. The defence were not able to test her, as they obviously expected to do, by showing her documents which it was reasonably open to believe were hers. I do not make any further comment in regard to that. I do not believe it is relevant to this determination.

Orders

41. The material sought to be tendered, is admissible. The defence can tender copies of communications even though their asserted author contests their authenticity. I will give the jury directions about how it is to be used.

Annexure – Jury Directions

“Ladies and gentlemen, there are a couple of things I need to say about this document. It is an important direction.

The tender came through a person who was not party to this conversation. You have heard the evidence of Ms Mudditt, solicitor, who was shown bundles of documents during the course of the trial, and she was pretty adamant by the end that these were her not her documents, and that’s important evidence as well.

When you consider these documents, there are three stages that you need to go through. The first assessment you have to make is:

Is it reasonably open that the evidence in the document – Exhibit 5 – is what the defence claim it to be? Now, that’s the first question. Are they Facebook or text conversations between Mr Bates and the complainant?

Second, when you do that, you examine the material – that is, the exhibit and what’s set out in it – in the light of all the evidence that you’ve heard during the trial, including the testing of the witness, and other material that is before you.

When you do so, you are entitled to draw reasonable inferences from what’s set out in the documents, the conversations in the documents, and draw from what’s reasonably open, any inferences that you draw, a conclusion as to the authenticity or identity of the people speaking.

So, that’s your decision as the triers of fact. So, is it reasonably open – is the question you ask – that the evidence is what the party claims it to be – and you make that assessment about its authenticity and the identity of the parties – or otherwise, based on any reasonable inferences that you can draw?

An inference is: “A is established, B is established, C is established, then D must be a reasonable inference.”

Now, if the answer to any of that enquiry or question is that I can’t be satisfied this was a conversation or these were conversations or any part of it were conversations between the complainant and the accused then it has no relevance to anything you’ll be deciding – and you put it to one side. So, you have to make that decision from all the inferences and all the evidence. Is it authentic and are they genuine conversations? If it’s not, then if you find it’s not what the defence claim it to be then this evidence would be put it in the bin – wouldn’t have any relevance to your determination.

Now, if you find that it is reasonably open, that it is a conversation or they are conversations between the complainant and the accused, you can use it as part of your assessment of the evidence in the trial. It’s not determinative of anything, it’s just one of the pieces of evidence that you have to consider, and ultimately, it is all the evidence you accept that you consider when you decide whether the prosecution has proved its case beyond reasonable doubt.

That is: The critical issues still are what happened in the home of Mr Bates on 6 October 2022?

You don’t assess this evidence in isolation from all the other evidence. You consider all of the evidence that you accept – and that’s presuming you do accept this. As part of that evidence, you will consider the submissions of counsel which will be made today and any legal directions I’ve given you.

Now, going back to the central issues in the trial which are whether consent was given, whether the prosecution have proved consent was given by the complainant, and whether the prosecution have proved the accused knew she did not consent – her evidence is she did not consent. It’s important that you understand that non-consensual sexual activity can occur in many, many different circumstances and courts regularly have many circumstances that lead to such charges.

These can include non-consensual sexual activity between many different kinds of people. This can activity include people who know each other and know each other well. It can include people – not this case – but who are married to each other. There can still be sexual assaults committed within a marriage, and sexual assaults can occur – non-consensual sexual activity – can occur between people who are in established relationships with each other.

It is also important that you not assume that a person consents to sexual activity because they were present in a particular location. Just because someone went back to someone’s home does not allow you to presume that sexual activity was consensual. There will be further directions I’ll give you later today, but they’re the important directions I think so far as these documents are concerned.

So, if it’s reasonably open to conclude they are what the defence say, which is conversations between the complainant and Mr Bates, then you use the evidence as part of the general evidence. But if you review those documents and say I can’t be satisfied that they are what the defence claim, that you can’t be satisfied they’re authentic, and they would have no relevance to your determination of the issues in the trial.”: Tcpt, 10 October 2024, pp 379-381.

Note

42. Mr Bates was found not guilty by the jury.

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Amendments

13 January 2025 - Included omitted citation.

Decision last updated: 13 January 2025