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

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.
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.

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.
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.
The complainant has asserted that their “relationship” was as boyfriend / girlfriend…

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 Bates

Details

AGLC: R v Bates [2024] NSWDC 612
Case: [2024] NSWDC 612
Decision Date: 09 October 2024

CaseChat Overview and Summary

In the case of R v Bates, the defendant was prosecuted for criminal offences under the Criminal Code Act 1995 (Cth). The dispute before the court involved the admissibility of documentary evidence tendered by the defence and the manner in which the jury should assess the authenticity of such evidence. The court was required to determine the legal issues surrounding the provisional admission of evidence in a jury trial and the appropriate directions to be given to the jury regarding the assessment of the authenticity of tendered documents.

The court examined the role of the judge as the evidentiary gatekeeper in determining the admissibility of evidence and the appropriate application of sections 57 and 58 of the Evidence Act 1995 (NSW). The primary issue was whether the defence could provisionally tender copies of communications even though their asserted author contests their authenticity. The court concluded that the defence could indeed tender such evidence provisionally, subject to the judge giving appropriate directions to the jury regarding the assessment of the authenticity of the tendered documents.

The court held that the judge should provide judicial directions to the jury on how to provisionally assess the authenticity of the tendered documents. This approach ensures that the jury can make an informed decision on the admissibility of the evidence without being unduly influenced by any potential bias or preconceptions. The court further noted that the jury's preliminary assessment of authenticity would be based on the information available to them at the time of the trial and that the final determination of authenticity would be made after considering all the evidence presented.

The court ordered that the defence could tender copies of communications even though their asserted author contests their authenticity. However, the judge must provide appropriate directions to the jury on how to assess the exhibit provisionally admitted. This decision ensures that the evidence is admitted in a fair and balanced manner, allowing the jury to make an informed decision on the admissibility of the evidence based on the available information.

Orders

Orders of the court

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

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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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