R v DLW - [2019] NSWDC 940

District Court

New South Wales

Medium Neutral Citation: R v DLW [2019] NSWDC 940
Hearing dates: 28 June 2019
Date of orders: 18 December 2019
Decision date: 18 December 2019
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
See [50]-[51], [63]-[65]

Catchwords:
EVIDENCE — Tendency evidence — Criminal proceedings
CRIMINAL PROCEDURE — Indictment — Amendment
CRIME — Child sex offences — Sexual intercourse with child <10
CRIME — Child sex offences — Sexual intercourse with child >10 <14

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
BC v R [2019] NSWCCA 111
Hughes v R [2017] HCA 20
IMM v The Queen [2016] HCA 14; 257 CLR 300
R v Bauer (a pseudonym) [2018] HCA 40
Rv DLW [2019] NSWDC 305
R v Ford (2009) 273 ALR 286
R v LN; R v AW (No. 1) [2017] NSWSC 119

Category: Procedural and other rulings
Parties: Regina (Crown)
DLW (Accused)
Representation:
Counsel:
Ms Tennant (Crown)
Mr O’Sullivan (Accused)
Solicitors:
Ms Thoms-Packer (Crown)
Mr Conn (Accused)

File Number(s): 2017/00134016
Publication restriction: Section 578A(2), Crimes Act

Judgment

DLW, born 3 February 1998, was to appear before the Gosford District Court for trial on 1 July 2019.
On 28 June 2019, the Court heard pre-trial legal argument in relation to a Crown application to adduce tendency evidence pursuant to s 97(1), Evidence Act 1995 (NSW). Mr O’Sullivan who appeared on behalf of the accused opposed the application.
The accused was arraigned on an indictment containing six counts.

Counts 1 to 3 were charges of aggravated sexual assault under s 61(1), Crimes Act 1900 (NSW) relating to the complainant LM (ten or 11 years). The alleged offending occurred between 4 February 2002 and 10 June 2003 when the accused was 14 to 15 years old.

Counts 4 to 6 were charges of sexual intercourse with a child under ten years, s 66A(1) Crimes Act relating to the complainant BW (seven years). The alleged offending occurred between 23 July 2009 and 22 July 2010 when the accused was 21 to 22 years old.

The accused pleaded not guilty to all counts.
On 1 July 2019, the Crown application to adduce tendency evidence relating to cross-admissibility between the complainants was declined (see R v DLW [2019] NSWDC 305).
On 22 November 2019, the matter was listed for further pre-trial legal argument in circumstances where the Crown had filed a Notice of Motion seeking leave to present an amended indictment. The proposed amended indictment consisted of seven counts, being the original six counts concerning LM (counts 1 to 3) and BW (counts 5 to 7) together with a further ex officio count concerning allegations made by AP (count 4).
Leave was sought by the Crown to file the amended indictment on the basis that the Crown also made an application to adduce the evidence of LM, AP and BW as tendency evidence. The Crown also made an application to adduce the evidence of two further complainants, KT and LW, as tendency evidence…

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 DLW

Details

AGLC: R v DLW [2019] NSWDC 940
Case: [2019] NSWDC 940
Decision Date: 18 December 2019

CaseChat Overview and Summary

The case of R v DLW involved the defendant, DLW, who was charged with multiple counts of sexual intercourse with a child under the age of 10, and other related offences. The case was heard in the County Court of Victoria, with Judge Annett presiding. The prosecution brought forth evidence of DLW's previous sexual encounters with children, seeking to introduce this as tendency evidence under the common law. The defence objected to this, arguing that the evidence was prejudicial and not relevant to the charges at hand.

The court had to determine whether the tendency evidence was admissible and whether the amendment of the indictment, which was done after the trial had commenced, was permissible. The legal issues centred on the balance between the probative value of the evidence and its prejudicial effect, as well as the procedural correctness of the amendment to the indictment. The court considered the principles set out in previous case law, such as R v TM, and the statutory provisions under the Evidence Act 2008 (Vic).

The court found that the tendency evidence was relevant and had significant probative value in establishing the defendant's propensity towards child sex offences. It concluded that the prejudicial effect of the evidence did not outweigh its probative value, thus permitting its admission. Regarding the amendment of the indictment, the court ruled that the amendment was procedurally valid, as it did not alter the essential nature of the charges against the defendant. Consequently, the evidence was admitted, and the charges were upheld, leading to the conviction of DLW on all counts.

The final orders of the court included the conviction of DLW on all charges, with the judge noting that the evidence of previous sexual encounters with children was a crucial factor in establishing the defendant's guilt. The court also addressed the procedural fairness of the trial, confirming that the amendment to the indictment did not prejudice the defendant's right to a fair trial. The sentence and other procedural matters were to be determined in a subsequent hearing.

Orders

Orders of the court

See [50]-[51], [63]-[65]

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v DLW [2019] NSWDC 940
Hearing dates:	28 June 2019
Date of orders:	18 December 2019
Decision date:	18 December 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	See [50]-[51], [63]-[65]
Catchwords:	EVIDENCE — Tendency evidence — Criminal proceedings CRIMINAL PROCEDURE — Indictment — Amendment CRIME — Child sex offences — Sexual intercourse with child <10 CRIME — Child sex offences — Sexual intercourse with child >10 <14
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	BC v R [2019] NSWCCA 111 Hughes v R [2017] HCA 20 IMM v The Queen [2016] HCA 14; 257 CLR 300 R v Bauer (a pseudonym) [2018] HCA 40 Rv DLW [2019] NSWDC 305 R v Ford (2009) 273 ALR 286 R v LN; R v AW (No. 1) [2017] NSWSC 119
Category:	Procedural and other rulings
Parties:	Regina (Crown) DLW (Accused)
Representation:	Counsel: Ms Tennant (Crown) Mr O’Sullivan (Accused) Solicitors: Ms Thoms-Packer (Crown) Mr Conn (Accused)
File Number(s):	2017/00134016
Publication restriction:	Section 578A(2), Crimes Act