R v Daw (No. 2)

[2021] NSWDC 6

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v DAW (No. 2) [2021] NSWDC 6

Hearing dates:

18-22, 25, and 27 January 2021

Date of orders:

27 January 2021

Decision date:

27 January 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs 19, 28

Catchwords:

CRIMINAL LAW – historical child sexual offences – procedure – no case application by accused on one Count on the indictment – Count was alternative to a Count which was subject to directed verdict – whether unfair to the accused to permit Crown to maintain count on indictment

CRIMINAL law – tendency evidence – application by Crown to adduce evidence not contested – whether evidence has significant probative value

Legislation Cited:

Crimes Act, ss 59, 61C

Evidence Act 1995 (NSW), ss 97, 100

Evidence Amendment (Tendency and Coincidence) Act2020 (NSW)

Cases Cited:

IMM v The Queen (2016) 257 CLR 300

R v Bauer (2018) 266 CLR 56; [2018] HCA 40

Category:

Procedural rulings

Parties:

Director of Public Prosecutions
Mr DAW

Representation:

Counsel:
Mr J Stanhope for the Director of Public Prosecutions
Ms R Court for the accused
Solicitors:
Office of the Director of Public Prosecutions
Absolve Legal for the accused

File Number(s):

2018/81157

Publication restriction:

Non Publication Order on the name of the complainant, and any information that may identify the complainant.

Pseudonyms have been used for the name of the complainant, the complainant’s family, and the accused.

Judgment

BACKGROUND

1. This trial has reached the stage where the evidence is complete. Prior to my consideration of my summing up, following discussions with Counsel (they having already supplied some written argument), two issues require determination.

2. First, in circumstances where the Crown accepts that the jury should be directed to acquit the accused on Count 5 of the indictment, the issue is whether they should also be directed to acquit the accused on Count 6, which is expressed to be in the alternative to Count 5. The accused’s Counsel submits that such direction be given but the Crown submits that it should not.

3. Secondly, also in issue is whether the Crown should be permitted to rely upon both charged and uncharged conduct as proof of a tendency in the accused, pursuant to s 97 of the Evidence Act 1995 (NSW) (‘the Act’). The accused neither consents to nor opposes the Crown’s application that it should be allowed to rely upon such evidence.

THE NO CASE SUBMISSION REGARDING COUNT 6

4. The Crown accepts that in the light of the evidence of the complainant, the jury should be directed to acquit the accused on Count 5. It maintains that Count 6 should be left for the jury.

5. Count 5 was in the following terms:

“Between 1 January 1987 and 19 November 1988 at [redacted], in the State of New South Wales, the accused maliciously inflicted actual bodily harm on the complainant with intent to have sexual intercourse with her.”

6. Count 6 was expressed to be in the alternative to Count 5, being that:

“Between 1 January 1987 and 19 November 1988, at [redacted] in the State of New South Wales, the accused did assault the complainant, thereby occasioning actual bodily harm to her.”

7. In its Crown Case Statement, at paragraph 29, the Crown foreshadowed that Count 5 and Count 6 concerned the same incident. To paraphrase, in that statement, the Crown foreshadowed that its case was that during the act of sexual intercourse, the complainant tried to push the accused away; and that this resistance led the accused to become angry and prompted him to remove his belt and strike the complainant with his belt on her legs, causing welts and bruising.

8. In his Opening to the Jury, Mr Crown said that the Crown case was that “at the time” the accused struck the complainant with his belt, he was intending to have sex with her. Further, when referring to the differences between Counts 5 and 6, Mr Crown explained, explicitly if not by necessary implication, that the Jury would reason that if the accused intended to have sex at the time he struck the complainant, the Jury should find guilt on Count 5, but that if he did not have the intention to have sex, the Jury should find guilt on Count 6 (T85-86).

9. At T92, Mr Crown outlined to the Jury the Crown case in relation to Counts 5, 6 (and 7). He said that the Crown expected that the complainant’s evidence was that during the course of the sex, in which the accused placed his penis in her vagina; the complainant physically resisted by pushing the accused away, and it was this which led the accused to become angry and to strike her with his belt on her legs. Mr Crown explicitly said that the Crown’s case was that this conduct sustained Count 5, and in the alternative Count 6, then Count 7; and that thereafter there was sexual intercourse.

10. At T122-123, the complainant gave evidence of an incident when she was wearing her winter pyjamas and was in her bedroom. She said that during an act of sexual intercourse, the complainant tried to push the accused away with her hands. She was questioned whether the accused reacted to this push and the complainant said he had not. The complainant was pressed further by the Crown as to whether there was ever an occasion when, with her active resistance of pushing him away, he had reacted in some way. Her answer was still in the negative.

11. Thereafter, the complainant was led to the position where she was asked to explain the circumstances in which she wore pants to school. It was this which elicited the complainant’s evidence that the accused had struck her with a belt. The complainant’s evidence, at T124-125, rose no higher than on the occasion that she was struck by the accused’s belt, there had not been any actual sexual activity to that point. Her evidence was to the effect that the accused struck her because she did not want to stay in her bedroom when the accused was in the bedroom.

12. Counsel for the accused submits that the complainant’s evidence did not come up to the expected proof in that the assault occasioned by the infliction of the belt was said to have occurred, separately or conjointly, with the accused actually having sex with her; which caused her physical resistance.

13. I accept that the evidence of the complainant did not come up to the proof of the single incident in the way in which it was described in the Crown’s case statement. The Crown case statement indicated that it expected the complainant to give evidence that it was in the course of the sexual intercourse that she physically resisted the accused, by pushing him away from her, which caused him to remove his belt and strike her with this belt. This was also how the Crown put its case in Mr Crown’s Opening.

14. The Crown does not seriously dispute this characterisation. But the Crown submits that there would be no unfairness to the accused that the charge of assault occasioning actual bodily harm remains for the Jury’s consideration even if Count 5 – which was put to the Jury as arising in the context of the accused and complainant actually having sex before the assault occurred – was removed.

15. Contrary to the submissions for the accused, the question of whether there is no case is not to be considered by reference to where there is an insufficiency in evidence of proof of the essential elements of the charge. However the circumstances in which the assault occurred, about which the complainant gave evidence, there is clear evidence of an assault occasioning actual bodily harm.

16. The real question is whether in the circumstances which the Crown expected the assault to have occurred in – in the context of the sex having occurred, where the accused met resistance and was angry that his desire for sexual gratification was being thwarted, or delayed – may not have been made out by the complainant’s evidence, and where the assault was put to the Jury as an alternative to Count 5, it should remain for the jury’s consideration.

17. There was no articulation on the accused’s part as to how such unfairness would arise. Conceivably, it might be that the accused took a forensic decision, in part, not to give evidence on whether or not he assaulted her for reasons that had nothing to do with wanting to have sex with the complainant. But given that the offence (which is the subject of Count 6) under s 59(1) of the Crimes Act, unlike s 61C(1)(a), does not require proof of any mental element of the accused, it is hard to see how the accused has been deprived of any forensic advantage. That said, even if Count 5 is no longer before it, evidence of the accused being thwarted in his attempts to have sex is a relevant fact in the jury’s consideration of whether he did in fact assault the complainant. It also remains open to the accused to argue that there is some doubt as to whether the assault occurred did actually arise where the Crown could not contend that it occurred in a context of sex occurring.

18. That being so, I do not consider that there is any unfairness to the accused in allowing Count 6 to remain for the Jury’s consideration even if the Crown could not establish an overt act of sexual intercourse as being one of the circumstances comprising the immediate background to the alleged assault. Whether the assault occurred whilst the accused and complainant were actually having sex, or whether it occurred on a separate occasion, whether the Jury might find that the accused wanted to have sex with the complainant is immaterial to the Crown establishing the essential elements for Count 6. I do not accept that there is an absence of evidence that would justify withholding the charge from the Jury.

19. I reject the accused’s no case submission in relation to Count 6.

TENDENCY EVIDENCE

20. The Crown relies upon a tendency notice (MFI #24). The notice expressly identified the tendency that the Crown seeks to rely upon as being a tendency to have a sexual interest in his ‘female family members’ and a tendency to act upon that interest, by engaging in sexual conduct with his ‘female family members.’ In the way that the evidence has emerged, there is no suggestion that the accused has any sexual interest in family members other than the complainant, so the expression ‘female family members’ has to be read down to mean only the complainant.

21. The Crown concedes that the notice was served out of time, but no objection was taken to the evidence on that account. Further, in circumstances where the application was brought after the complainant had given evidence and an additional particular to the last version of the notice was sought to be added, the contents of the notice have been supplanted in various respects. For those reasons, I dispensed with that particular requirement under s 100 of the Act.

22. Having regard to the accused’s position, as indicated, the only question for the Court’s consideration is whether the Court is satisfied that, by itself, or having regard to the other evidence adduced, evidence of the accused’s alleged tendency has significant probative value.

23. It is common ground that the question is to be considered in the context of the Act as it was, prior to amendments made to the Act by the Evidence Amendment (Tendency and Coincidence) Act2020 (NSW).

24. ‘Probative value’ carries a defined meaning in the Dictionary to the Act, being evidence which ‘could rationally affect the assessment of the probability of the existence of a fact in issue’. In the context of tendency evidence, in IMM v The Queen (2016) 257 CLR 300 the plurality (at [46]) said that the “significance of the probative value… must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact finding.”

25. The Crown’s tendency notice partly relied upon acts which are the subject of specific counts on the indictment, being the subject of the complainant’s evidence. But as was developed in the Crown’s argument on the application, the Crown also relies upon other instances of alleged sexual misconduct, the subject of the complainant’s evidence, in respect to which the accused has not been charged. It is unnecessary for the purpose of these short reasons to identify each of those incidents. They will be set out, in due course, in the summing up to the Jury.

26. The Crown relies upon the authority of the High Court’s decision in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [48] to argue that the complainant’s evidence of uncharged sexual acts are admissible as tendency evidence in proof of the charged offences. In particular, it is unnecessary that the uncharged acts have some sort of special, particular or unusual feature about them. As the plurality explained, taken in combination with other evidence, the evidence may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which may assist the Jury to eliminate doubts that might otherwise attend the complainant’s evidence of the charged acts.

27. I see no reason why the reasoning should not apply here.

28. The tendency evidence that the Crown relies upon meets the evidentiary threshold in s 97(1)(b) of the Act. In the circumstances of this kind, it is therefore admissible.

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Amendments

05 February 2021 - Amended judgment to remove and redact information that may identify the complainant.

Decision last updated: 05 February 2021