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R v McDonald (a pseudonym)

R v McDonald (a pseudonym)

Case [2024] NSWDC 265 4 July 2024

Admissibility of Evidence

Appeal

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v McDonald (a pseudonym) [2024] NSWDC 265
Hearing dates: 2, 3 and 4 July 2024
Date of orders: 4 July 2024
Decision date: 04 July 2024
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
The Crown application to lead tendency evidence is refused, at [60] – [62].

Catchwords:
CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of tendency evidence in proceedings involving child sexual offences — Application of s 97A — Presumption that tendency evidence in child sexual assault proceedings will have significant probative value — Lapse of over three decades between alleged offending and uncharged tendency acts sought to be led, together with acts having occurred when accused was a child, found to constitute “exceptional circumstances” under s 97A(5) — Application to lead tendency evidence rejected.

Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: BC v R [2019] NSWCCA 111
Davidson (a pseudonym) v R [2024] NSWCCA 60
HB v The Queen [2011] VSCA 295
House v King (1936) 55 CLR 499
Hughes v The Queen (2017) 92 ALJR 52
McPhillamy v The Queen (2018) 361 ALR 13
R v Bauer (a pseudonym) (2018) 92 ALJR 846
R v Clarke [2023] NSWCCA 123
R v Constant (2016) 126 SASR 1; [2016] SASCFC 87
R v Cox [2007] EWSA Crim 3365
R v Hanson [2005] 2 Cr App R 21
R v M [2006] EWCA Crim 3408
R v SK [2011] NSWCCA 292
Regina v Thomas Douglas Watkins [2005] NSWCCA 164; 153 A Crim R 434
RH v R [2014] NSWCCA 71
TB v R [2019] NSWCCA 224
Texts Cited:
Second Reading Speech, Evidence Amendment (Tendency and Coincidence) Bill 2020

Category: Procedural rulings
Parties: Director of Public Prosecutions (NSW) (Crown)
Henry McDonald (a pseudonym) (Accused)
Representation:
Counsel:

G Whitaker (Crown)
M Juhasz and C Nowlan (Accused)

Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Richard Cummins Solicitors (Accused)

File Number(s): 2022/00361087
Publication restriction: Pursuant to section 578A of the Crimes Act 1900 (NSW) and 15A of the Children (Criminal Proceedings) Act 1987, there is to be no publication of a name that identifies or is likely to lead to the identification of the complainant.

JUDGMENT

Henry McDonald appears for trial with respect to three substantive counts which allege a variety of acts constituting sexual misconduct with his daughter. Two incidents allege sexual intercourse as defined (counts 1 and 4) with alternative counts (counts 2 and 5) to each of those allegations, of assault with an act of indecency. A separate substantive count of an assault with an act of indecency is pleaded as Count 3. The allegations relate to incidents of sexual assault said to have been committed by the accused on his daughter on various occasions when the child was between the ages of approximately 5 or 6 years of age and approximately 13 years of age. The Crown seeks to lead evidence of uncharged acts which are said to have occurred between the accused and his daughter, such uncharged…

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 McDonald (a pseudonym)

Details

AGLC: R v McDonald (a pseudonym) [2024] NSWDC 265
Case: [2024] NSWDC 265
Decision Date: 04 July 2024

CaseChat Overview and Summary

In the matter of R v McDonald, the defendant faced charges related to child sexual offences. The primary issue before the court was whether the Crown could present tendency evidence to demonstrate that the defendant had a propensity to commit such offences. This case was heard in the Supreme Court of Victoria. The defendant argued that the evidence was inadmissible because it pertained to acts that occurred over three decades prior to the alleged offences and involved acts that happened when the defendant was a child. These factors, according to the defendant, constituted "exceptional circumstances" under section 97A(5) of the Evidence Act 2008 (Vic).

The court needed to decide whether the Crown's application to present tendency evidence was permissible under section 97A of the Act. The legal issues centred around the interpretation of "exceptional circumstances" and whether the passage of time and the age of the accused at the time of the uncharged acts qualified. The court also considered the balance between the probative value of the evidence and the potential for unfair prejudice to the defendant, as required by the legislative framework. The statutory presumption of significant probative value in child sexual assault proceedings was a key element in the analysis.

The court found that the exceptional circumstances outlined by the defendant warranted exclusion of the tendency evidence. The significant lapse of time and the fact that the uncharged acts occurred when the defendant was a child were deemed sufficient to meet the criteria for exceptional circumstances under section 97A(5). Consequently, the application to admit the tendency evidence was rejected. The court emphasised the importance of protecting defendants from the prejudicial effects of evidence that is too remote in time and context, particularly when it involves acts from their childhood.

Orders

Orders of the court

The Crown application to lead tendency evidence is refused, at [60] – [62].

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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Citations

AGLC Citation

R v McDonald (a pseudonym) [2024] NSWDC 265

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Davidson (a pseudonym) v The King
[2024] NSWCCA 60 Para 34

…On behalf of the accused in the present matter, Mr Juhasz of counsel also referred the Court to Davidson (a pseudonym) v R [2024] NSWCCA 60. The trial judge, Judge Haesler SC, had admitted evidence of tendency which had been identified as having a particular state of mind, namely a sexual interest in teenage girls…
R v Clarke
[2023] NSWCCA 123 Para 53

…The Crown also referred the Court to one of the few appeal decisions following the introduction of s 97A. In R v Clarke [2023] NSWCCA 123, the Court upheld an appeal by the Director of Public Prosecutions from a pre-trial ruling by Judge Coleman SC in which his Honour had held that tendency evidence sought to be rel…
TB v R
[2019] NSWCCA 224 Para 46

…The Crown also made reference to TB v R [2019] NSWCCA 224. The appellant in TB had been convicted following a trial in the District Court before his Honour Judge Bozic SC. The first count of which the offender was convicted had occurred in 1997 or 1998 when he was between the ages of 19 and 21. The complainant was 1…
BC v R
[2019] NSWCCA 111 Para 39

…The Court was also referred to BC v R [2019] NSWCCA 111. That appeal followed a retrial in which four complainants had given evidence with respect to some 20 separate allegations of child sexual assault offences. The offending conduct occurred between 1994 and 2011. The appellant was convicted on all counts. He had…
McPhillamy v The Queen
[2018] HCA 52 Para 24

…In McPhillamy v The Queen (2018) 361 ALR 13, the High Court granted special leave on the question of whether asserted tendency evidence which had occurred a decade before the alleged offending against the complainant had significant probative value. That prerequisite in s 97(1)(b) predated the introduction of s 97A.…
R v Bauer
[2018] HCA 40 Para 33

…The High Court, after referring to Hughes v The Queen (2017) 92 ALJR 52 at [69] and R v Bauer (a pseudonym) (2018) 92 ALJR 846 at [863] said that it would “usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.” The Court concluded…
Hughes v The Queen
[2017] HCA 20 Para 33

…The High Court, after referring to Hughes v The Queen (2017) 92 ALJR 52 at [69] and R v Bauer (a pseudonym) (2018) 92 ALJR 846 at [863] said that it would “usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.” The Court conclude…
R v Constant
[2016] SASCFC 87 Para 58

…In R v Constant (2016) 126 SASR 1; [2016] SASCFC 87, the Court, referring to a test of “exceptional circumstances”, said:…
RH v R
[2014] NSWCCA 71 Para 50

…The Court of Criminal Appeal in TB also referred to RH v R [2014] NSWCCA 71 in which the sexual assault offences against two children in the accused’s foster care were found to be reasonably similar in a number of respects. Ward JA in RH found that although there were differences in the alleged sexual acts, the con…
RHB v The Queen
[2011] VSCA 295 Para 43

…The Crown directed the Court’s attention to RHB v The Queen [2011] VSCA 295. That was an application for leave to appeal against an interlocutory decision of Judge Duggan of the County Court to admit evidence of previous convictions as tendency evidence. The charge at trial was a single offence of an indecent act…
R v SK
[2011] NSWCCA 292 Para 49

…The Court of Criminal Appeal made reference to R v SK [2011] NSWCCA 292 where there was a temporal gap of 8 years between the first and second of the alleged offences. On the facts of that matter, Latham J, with whom Giles JA and Rothman J agreed, found that the lapse of time between the alleged assaults upon the re…
R v Watkins
[2005] NSWCCA 164 Para 50

…ual acts, the conduct as a whole had greater similarity than different acts which had led to a different outcome in Regina v Thomas Douglas Watkins [2005] NSWCCA 164; 153 A Crim R 434. I should immediately observe that Watkins was a fraud trial in which an earlier defrauding by the offender in 1983 and 1984 was reli…
House v R
[1936] HCA 40 Para 45

…rtainly [a consideration] to be borne in mind in weighing up the situation.” The Appeal Court was of the view that the principles in House v King (1936) 55 CLR 499 were applicable and that the test was not satisfied in the matter before them, in other words, it had been open to the judge at first instance. The judge…
House v King
Para 45

…levant and certainly [a consideration] to be borne in mind in weighing up the situation.” The Appeal Court was of the view that the principles in House v King (1936) 55 CLR 499 were applicable and that the test was not satisfied in the matter before them, in other words, it had been open to the judge at first instance…

Legislation cited in this decision · 3

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention
Evidence Act 1995 (Cth)
1 mention (from Para 4)

Medium Neutral Citation:	R v McDonald (a pseudonym) [2024] NSWDC 265
Hearing dates:	2, 3 and 4 July 2024
Date of orders:	4 July 2024
Decision date:	04 July 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	The Crown application to lead tendency evidence is refused, at [60] – [62].
Catchwords:	CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of tendency evidence in proceedings involving child sexual offences — Application of s 97A — Presumption that tendency evidence in child sexual assault proceedings will have significant probative value — Lapse of over three decades between alleged offending and uncharged tendency acts sought to be led, together with acts having occurred when accused was a child, found to constitute “exceptional circumstances” under s 97A(5) — Application to lead tendency evidence rejected.
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	BC v R [2019] NSWCCA 111 Davidson (a pseudonym) v R [2024] NSWCCA 60 HB v The Queen [2011] VSCA 295 House v King (1936) 55 CLR 499 Hughes v The Queen (2017) 92 ALJR 52 McPhillamy v The Queen (2018) 361 ALR 13 R v Bauer (a pseudonym) (2018) 92 ALJR 846 R v Clarke [2023] NSWCCA 123 R v Constant (2016) 126 SASR 1; [2016] SASCFC 87 R v Cox [2007] EWSA Crim 3365 R v Hanson [2005] 2 Cr App R 21 R v M [2006] EWCA Crim 3408 R v SK [2011] NSWCCA 292 Regina v Thomas Douglas Watkins [2005] NSWCCA 164; 153 A Crim R 434 RH v R [2014] NSWCCA 71 TB v R [2019] NSWCCA 224
Texts Cited:	Second Reading Speech, Evidence Amendment (Tendency and Coincidence) Bill 2020
Category:	Procedural rulings
Parties:	Director of Public Prosecutions (NSW) (Crown) Henry McDonald (a pseudonym) (Accused)
Representation:	Counsel: G Whitaker (Crown) M Juhasz and C Nowlan (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) Richard Cummins Solicitors (Accused)
File Number(s):	2022/00361087
Publication restriction:	Pursuant to section 578A of the Crimes Act 1900 (NSW) and 15A of the Children (Criminal Proceedings) Act 1987, there is to be no publication of a name that identifies or is likely to lead to the identification of the complainant.