R v BP

[2019] NSWDC 112

District Court

New South Wales

Medium Neutral Citation:	R v BP [2019] NSWDC 112
Hearing dates:	1 April 2019
Date of orders:	04 April 2019
Decision date:	04 April 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Tendency evidence allowed
Catchwords:	CRIMINAL LAW – EVIDENCE – tendency evidence – probative value – uncharged act – act relied upon occurred after charged acts – similar act – same victim – issue of temporal disconnect
Legislation Cited:	Evidence Act 1995
Cases Cited:	BC v R [2015] NSWCCA 327 Hughes v The Queen [2017] HCA 20 IMM v The Queen [2016] HCA 14 McPhillamy v The Queen [2018] HCA 52 R v AC [2018] NSWCCA 130 R v SK [2011] NSWCCA 292 RH v R [2014] HCATrans 282 RH v R [2014] NSWCCA 71 The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40
Texts Cited:	None
Category:	Procedural and other rulings
Parties:	Regina (Crown) BP (Accused)
Representation:	Counsel: Ms K Tennant (Crown) Mr J O’Sullivan (Accused)   Solicitors: ODPP (Crown) David Kelly Lawyers (Accused)
File Number(s):	2017/313106
Publication restriction:	Non-Publication order regarding the identity of the complainant and the Accused

Judgment

Introduction

1. Pursuant to a Notice for Tendency Evidence dated 28 March 2019, the Crown sought to make use of an uncharged act as establishing tendency in respect of the Accused.

2. Counsel for the Accused opposed the evidence being used in that fashion, submitting that by reason of delay between the charged and uncharged acts, the probative value of the evidence had diminished to the point that it either lacked any probative value or was outweighed by the prejudice to his client.

3. Nevertheless, Counsel for the Accused accepted that the evidence was admissible for another purpose. That is to place the complaint evidence in context. The fact that the evidence of the uncharged act would be before the jury for that other purpose diminishes the prejudicial effect.

4. For the argument on the use of the evidence for a tendency purpose, it was agreed that the period which had elapsed between the charged and the uncharged acts was 6 years.

The Tendency Notice

5. The Crown gave notice on 28 March 2019 that it intended to adduce evidence of an uncharged act in order to establish that the Accused had a tendency to act in particular way, or to have a particular state of mind. No issue was taken as to the time of service of the notice, nor as to its content.

6. The Indictment upon which the Accused was arraigned included two counts, as follows:

1. between 22 July 2004 and 31 December 2006, at Kariong in the State of New South Wales, the Accused did assault the complainant and at the time of the assault committed an act of indecency on the complainant, a child under the age of 10 years, namely, 7, 8 or 9 years; and

2. Between 22 July 2004 and 31 December 2006, at Kariong in the State of New South Wales, the Accused did have sexual intercourse with the complainant,…