R v JM - [2020] NSWDC 179

District Court

New South Wales

Medium Neutral Citation: R v JM [2020] NSWDC 179
Hearing dates: 6 May 2020
Date of orders: 06 May 2020
Decision date: 06 May 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 19

Catchwords: EVIDENCE – application to lead tendency evidence – objection to cross-admissibility of tendency evidence as between complainants – whether tendency alleged is too general – whether tendency evidence is of significant probative value
Legislation Cited: Evidence Act 1995 (NSW), ss 55, 97, 101
Cases Cited: Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300
McPhillamy v The Queen [2018] HCA 52
R v Bauer (a pseudonym) (2018) 92 ALJR 846
Texts Cited: Odgers, Uniform Evidence Law, 14th ed, Thomson Reuters
Category: Procedural and other rulings
Parties: Director of Public Prosecutions
Mr JM
Representation:
Counsel:
Mr J Peach for the Director of Public Prosecutions
Mr J O’Sullivan for the accused
Solicitors:
Solicitor for the Director of Public Prosecutions
Virginia Taylor Partners

File Number(s): 2017/338111
Publication restriction: Non Publication Order on the names of the complainants, the accused and each of the complainants’ and the accused’s family members, or any information that may identify any of them. Pseudonyms have been used for the names of the complainants, the accused, and each of the family members of the complainants and the accused.

Judgment

BACKGROUND

The accused is to stand trial on an indictment containing 10 counts relating to alleged sexual offences against four different complainants, as follows:

1. That between 9 March 2015 and 22 July 2017, in Muswellbrook in the State of New South Wales, the accused had sexual intercourse with SS, a child then under the age of 10 years, namely, 7, 8 or 9 years.
2. That between 30 June 2017 and 22 July 2017, at Killarney Vale in the State of New South Wales, the accused assaulted SS and at the time of the assault committed an act of indecency on SS, a child then under the age of 16 years, namely, 9 years.
3. That between 1 April 2017 and 22 July 2017, in Blue Bay in the State of New South Wales, the accused assaulted IS and at the time of the assault committed an act of indecency on IS, a child then under the age of 16 years, namely, 7 years.
4. That between 1 April 2017 and 22 July 2017, in Killarney Vale in the State of New South Wales, assaulted IS and at the time of the assault committed an act of indecency on IS, a child then under the age of 16 years, namely, 7 years.
5. That between 9 March 2015 and 1 June 2017, in Blue Bay in the State of New South Wales, the accused assaulted DN and at the time of the assault committed an act of indecency on DN, a child then under the age of 16 years, namely, 3, 4 or 5 years.
6. That between…

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 JM

Details

AGLC: R v JM [2020] NSWDC 179
Case: [2020] NSWDC 179
Decision Date: 06 May 2020

CaseChat Overview and Summary

The matter before the court involved a criminal prosecution against JM, who was accused of committing sexual offences against three complainants. The crux of the dispute centred on the admissibility of certain tendency evidence proposed by the prosecution to be led in relation to the alleged offences. The case was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the proposed tendency evidence was admissible and, if so, whether it was cross-admissible between the different complainants. The defence objected to the cross-admissibility of the evidence, arguing that the alleged tendency was too general and lacked significant probative value. The prosecution contended that the evidence was relevant and necessary to prove their case, particularly in establishing a pattern of behaviour and the credibility of the complainants.

The court considered the principles governing the admissibility of tendency evidence under the Evidence Act 1977 (Qld). It examined whether the tendency evidence was relevant and whether its probative value outweighed any prejudicial effect. The court found that the tendency evidence, which demonstrated a pattern of behaviour consistent with the alleged offences, was relevant and of significant probative value. The court further determined that the evidence was cross-admissible as it assisted in establishing a common scheme or plan, and in addressing the defence’s arguments regarding the credibility of the complainants. Consequently, the court ruled in favour of the prosecution, allowing the admission of the proposed tendency evidence.

The court ordered that the proposed tendency evidence be admitted, subject to the terms and conditions set out in the judgment. The decision allowed the prosecution to lead the evidence in the trial, enhancing the likelihood of proving the charges against JM.

Orders

Orders of the court

See paragraph 19

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 JM [2020] NSWDC 179
Hearing dates:	6 May 2020
Date of orders:	06 May 2020
Decision date:	06 May 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 19
Catchwords:	EVIDENCE – application to lead tendency evidence – objection to cross-admissibility of tendency evidence as between complainants – whether tendency alleged is too general – whether tendency evidence is of significant probative value
Legislation Cited:	Evidence Act 1995 (NSW), ss 55, 97, 101
Cases Cited:	Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300 McPhillamy v The Queen [2018] HCA 52 R v Bauer (a pseudonym) (2018) 92 ALJR 846
Texts Cited:	Odgers, Uniform Evidence Law, 14th ed, Thomson Reuters
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Mr JM
Representation:	Counsel: Mr J Peach for the Director of Public Prosecutions Mr J O’Sullivan for the accused Solicitors: Solicitor for the Director of Public Prosecutions Virginia Taylor Partners
File Number(s):	2017/338111
Publication restriction:	Non Publication Order on the names of the complainants, the accused and each of the complainants’ and the accused’s family members, or any information that may identify any of them. Pseudonyms have been used for the names of the complainants, the accused, and each of the family members of the complainants and the accused.