District Court
New South Wales
Medium Neutral Citation: R v RB (No 5) [2020] NSWDC 583 Hearing dates: 30 September 2020 Date of orders: 30 September 2020 Decision date: 30 September 2020 Jurisdiction: Criminal Before: Grant DCJ Decision: I refuse the Crown application to adduce tendency evidence. I refuse the application seeking leave to cross-examine the complainant.
Catchwords: CRIMINAL PROCEDURE - evidence - sexual offence proceedings - single complainant - pre trial orders - context eviddence- s 130A Criminal Procedure Act 1986 - tendency evidence - s 135 Evidence Act 1995 - s 137 Evidence Act 1995 - s293 Evidence Act 1995 - admissibility
Legislation Cited: Crimes Act 1900
Evidence Act 1995
Cases Cited: Rogers v The Queen (1994) 181 CLR 251
Jackmain (a pseudonym) v R [2020] NSWCCA 150
Category: Procedural and other rulings Parties: Regina (Crown)
RB (Accused)Representation: Counsel:
Solicitors:
Mr Kerr (Crown)
Ms Graham (Offender)
Ms Brown (Crown)
Ms Gidlow (ALS)
File Number(s): 2017/0056625 Publication restriction: Non publication order in relation to the names of the complainant and the accused.
Judgment
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By indictment dated as long ago as 5 December 2017, the accused stands charged with one count of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act (1900), and three counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act. There is a single complainant (JQ). She is the accused's former wife. He had previously faced charges in relation to AW.
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On 18 October 2016, the Director of Public Prosecutions served a written notice on the accused's legal representatives, indicating that the Crown intended to adduce tendency evidence, the substance of which was contained in JQ's statement to police on 1 April 2016 (first tendency notice).
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In December 2016, before the trial in relation to AW was able to commence, the prosecutor notified the accused and the Court that the Crown no longer intended to adduce tendency evidence against the accused. On 31 October 2017, a joint indictment of eight counts (AW and JQ) was served on the accused. On 28 November 2017, the Director of Public Prosecutions served notice intending to adduce tendency evidence, which included JQ’s statement and a statement of Dr Orr and her clinical notes (the second tendency notice). On 30 November 2017, a third tendency notice was served, which superseded the previous tendency notices. The notice relied upon the statements of JQ and AW.
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On 4 December 2017, the accused was arraigned, and pleaded not guilty, before King SC DCJ. The original indictment contained eight counts, containing two complainants, JQ and AW. The accused objected to tendency evidence sought to be led by the Crown, and also applied to sever the indictment to separate the JQ and AW counts.
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On 5 December 2017, King SC DCJ rejected the tendency evidence sought to be adduced by the Crown, and…
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- AGLC
- R v RB (No 5) [2020] NSWDC 583
- Case
- [2020] NSWDC 583
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred around the admissibility of evidence under the provisions of the Evidence Act 1995 and the Criminal Procedure Act 1986. Specifically, the Crown sought to adduce tendency evidence and cross-examine the complainant on matters that would typically be excluded under s 130A of the Criminal Procedure Act 1986. The court was required to determine whether the evidence in question was admissible under s 135 of the Evidence Act 1995, which deals with the admissibility of tendency evidence, and whether the probative value of the evidence outweighed any prejudicial effect under s 137. Additionally, the court considered the implications of s 293 of the Evidence Act 1995, which relates to the admissibility of evidence of a witness's character.
The court held that the Crown's application to adduce tendency evidence was refused. The judge found that the probative value of the evidence did not sufficiently outweigh its prejudicial effect, and that it would be inappropriate to admit such evidence under s 135 of the Evidence Act 1995. The court also denied the Crown's application to cross-examine the complainant on matters that would typically be excluded under s 130A of the Criminal Procedure Act 1986. The judge concluded that the evidence sought was not admissible and would have a detrimental impact on the fairness of the trial. The court's decision was based on a careful consideration of the statutory provisions and the principles of admissibility as set out in the Evidence Act 1995.
In conclusion, the court refused the Crown's application to introduce tendency evidence and to cross-examine the complainant on certain matters. The court's decision was grounded in the statutory provisions of the Evidence Act 1995 and the Criminal Procedure Act 1986, and the judge's determination that the prejudicial effect of the evidence outweighed its probative value. The orders of the court effectively barred the Crown from introducing the contested evidence in the trial.
Orders
Orders of the court
I refuse the Crown application to adduce tendency evidence. I refuse the application seeking leave to cross-examine the complainant.
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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