R v DLW - [2019] NSWDC 305

District Court

New South Wales

Medium Neutral Citation: R v DLW [2019] NSWDC 305
Hearing dates: 28 June 2019
Date of orders: 01 July 2019
Decision date: 01 July 2019
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
(1) I decline to admit the evidence of LM as tendency evidence with respect to counts 4, 5 and 6.
(2) I decline to admit the evidence of BW as tendency evidence with respect to counts 1, 2 and 3.
(3) I admit the evidence of LM as tendency evidence in relation to counts 1, 2 and 3.
(4) I admit the evidence of BW as tendency evidence in relation to counts 4, 5 and 6.
(5) I order that there be separate trials in relation to counts 1, 2, 3 (LM) and counts 4, 5 6 (BW).

Catchwords:
Admissibility of Tendency Evidence – Temporal Gap – Significant Probative Value

Legislation Cited:
Crimes Act 1900 (NSW), ss 61J, 66A
Evidence Act 1995 (NSW), ss 55, 97, 101

Cases Cited:
BC v R [2019] NSWCCA 111
McPhillamy v R [2018] HCA 52
R v Bauer (a Pseudonym) [2018] HCA 40
R v LN; R v AW (No. 1) [2017] NSWSC 119

Category: Procedural and other rulings
Parties: Regina (Crown)
DLW (Accused)
Representation:
Counsel:
Ms K Tennant (Crown)
Mr J O’Sullivan (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid (Accused)

File Number(s): 2017/134016
Publication restriction: Section 578(2), Crimes Act applies to this matter – no publication of any matter which identifies the complainants or may lead to the identification of the complainants.

Judgment

Admissibility of tendency evidence

DLW (the “accused”) was to appear before Gosford District Court for trial today, 1 July 2019.
On 28 June 2019, the Court heard pre-trial legal argument in relation to the admissibility of tendency evidence pursuant to s 97(1), Evidence Act 1995 (NSW).
The accused was arraigned on an indictment containing six counts as follows:

Count 1
Between 4 February 2002 and 10 June 2003 at Gloucester in the State of New South Wales did have sexual intercourse with LM without his consent and knowing that he was not consenting in circumstances of aggravation, namely that at the time of the offence LM was a person under the age of 16 years, namely 10 or 11 years (s 61J(1), Crimes Act 1900 (NSW)).
Count 2
Between 4 February 2002 and 10 June 2003 at Gloucester in the State of New South Wales did have sexual intercourse with LM without his consent and knowing that he was not consenting in circumstances of aggravation, namely that at the time of the offence LM was a person under the age of 16 years, namely 10 or 11 years (s 61J(1), Crimes Act).
Count 3
Between 4 February 2002 and 10 June 2003 at Mannering Park in the State of New South Wales did have sexual intercourse with LM without his consent and knowing that he was not consenting in circumstances of aggravation, namely at the time of the offence LM was…

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 305
Case: [2019] NSWDC 305
Decision Date: 01 July 2019

CaseChat Overview and Summary

The case of R v DLW involved the defendant facing charges relating to alleged sexual offences. The accused was to be tried separately on two sets of counts, with two different complainants, LM and BW. The court was required to determine the admissibility of evidence of previous sexual encounters between the accused and each complainant, which the defence sought to introduce as tendency evidence. The defence argued that this evidence demonstrated a propensity for the accused to engage in such behaviour. The prosecution objected on the grounds of the temporal gap between the previous encounters and the current charges.

The central legal issue before the court was whether the evidence of previous sexual encounters should be admitted as tendency evidence under s 97 of the Evidence Act 1995. The court had to consider the relevance of the previous encounters to the current charges, whether they had significant probative value, and whether admitting them would unfairly prejudice the accused. The temporal gap between the previous encounters and the current charges was also a critical factor in determining the admissibility of the evidence.

The court found that the evidence of LM, regarding counts 1, 2 and 3, had significant probative value and was therefore admissible. The court found that the previous encounters were not too remote in time and were sufficiently similar to the current charges to be relevant. However, the evidence of LM was not admitted in relation to counts 4, 5 and 6, as it was deemed too remote in time and not probative of the current charges. Similarly, the evidence of BW was not admitted in relation to counts 1, 2 and 3, but was admitted in relation to counts 4, 5 and 6, for the same reasons. The court ordered separate trials for the two sets of charges.

The court's orders were that the evidence of LM would be admitted as tendency evidence in relation to counts 1, 2 and 3, and the evidence of BW would be admitted in relation to counts 4, 5 and 6. The evidence of LM was not admitted in relation to counts 4, 5 and 6, and the evidence of BW was not admitted in relation to counts 1, 2 and 3. The court also ordered that there be separate trials for counts 1, 2 and 3 (LM) and counts 4, 5 and 6 (BW).

Orders

Orders of the court

(1) I decline to admit the evidence of LM as tendency evidence with respect to counts 4, 5 and 6.

(2) I decline to admit the evidence of BW as tendency evidence with respect to counts 1, 2 and 3.

(3) I admit the evidence of LM as tendency evidence in relation to counts 1, 2 and 3.

(4) I admit the evidence of BW as tendency evidence in relation to counts 4, 5 and 6.

(5) I order that there be separate trials in relation to counts 1, 2, 3 (LM) and counts 4, 5 6 (BW).

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 DLW [2019] NSWDC 305
Hearing dates:	28 June 2019
Date of orders:	01 July 2019
Decision date:	01 July 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	(1) I decline to admit the evidence of LM as tendency evidence with respect to counts 4, 5 and 6. (2) I decline to admit the evidence of BW as tendency evidence with respect to counts 1, 2 and 3. (3) I admit the evidence of LM as tendency evidence in relation to counts 1, 2 and 3. (4) I admit the evidence of BW as tendency evidence in relation to counts 4, 5 and 6. (5) I order that there be separate trials in relation to counts 1, 2, 3 (LM) and counts 4, 5 6 (BW).
Catchwords:	Admissibility of Tendency Evidence – Temporal Gap – Significant Probative Value
Legislation Cited:	Crimes Act 1900 (NSW), ss 61J, 66A Evidence Act 1995 (NSW), ss 55, 97, 101
Cases Cited:	BC v R [2019] NSWCCA 111 McPhillamy v R [2018] HCA 52 R v Bauer (a Pseudonym) [2018] HCA 40 R v LN; R v AW (No. 1) [2017] NSWSC 119
Category:	Procedural and other rulings
Parties:	Regina (Crown) DLW (Accused)
Representation:	Counsel: Ms K Tennant (Crown) Mr J O’Sullivan (Accused) Solicitors: Director of Public Prosecutions (Crown) Legal Aid (Accused)
File Number(s):	2017/134016
Publication restriction:	Section 578(2), Crimes Act applies to this matter – no publication of any matter which identifies the complainants or may lead to the identification of the complainants.