R v RD - [2012] NSWDC 242

District Court

New South Wales

Medium Neutral Citation: R v RD [2012] NSWDC 242
Hearing dates: 27/07/2012
Decision date: 27 July 2012
Jurisdiction: Criminal
Before: Murrell SC DCJ
Decision:
Tendency evidence admitted re two complainants, rejected re third complainant.

Catchwords: CRIMINAL LAW- Evidence- tendency- application on voire dire to adduce evidence that the accused has a tendency to be sexually interested in young girls- evidence of other complainants from separate trials- risk of concoction and contamination- similarity of acts- distance in time- whether significant probative value to facts in issue.
Legislation Cited: Evidence Act 1995 (Cth) ss 97, 101
Cases Cited: R v Cittadini [2008] NSWCCA 256
Dao V R [2011] NSWCCA 63
R v PWD [2010] NSWCCA 209
AE v R [2008] NSWCCA 52
Hoch v The Queen (1998) 165 CLR 222
BP v R [2010] NSWCCA 261
R v OGD [2000] NSWCCA 404
Category: Separate question
Parties: The Crown
RD
Representation: Mr P Wagstaff (Crown)
Mr M Smith (Accused)
Office of the Director of Public Prosecutions NSW
McGirr James Hall & Associates (Accused)

File Number(s): 2009/223470
Publication restriction: There is to be no publication of the names of the complainants or any material that tends to identify the complainants.

Ruling on Tendency Evidence

A prosecutor can rely on evidence showing that an accused tends to think or act in a particular way if the "tendency evidence" has "significant probative value" and the probative value "substantially outweighs any prejudicial effect" on the accused. In this case, three young women (complainants A, B and C) allege that, in 2002, the accused sexually assaulted them. The Crown argues that the evidence of each complainant should be admitted in the trials relating to the other complainants because it shows a tendency of the accused to be sexually interested in young girls and to act upon that interest. In addition, the prosecutor seeks to rely upon A's evidence of sexual conduct in Queensland and a photograph of a naked girl (said to be A) that police found at the premises of the accused. In the trials relating to A and C (but not B), I will admit evidence of each in the trial relating to the other because I am satisfied that it has significant probative value and its probative value substantially outweighs any unfair prejudice to the accused.

The Crown gave appropriate notice of its intention to adduce tendency evidence (voir dire Exhibit 5).

The Crown submits that the evidence is also admissible as coincidence evidence. However, the Crown's principal concern is to use it as tendency evidence.

It is not necessary to address the coincidence issue because it raises considerations similar to those raised by the tendency argument. Insofar as it raises different considerations, in the circumstances of this case, it would be more difficult for the Crown to establish admissibility.

The Crown does not pursue the foreshadowed application to adduce tendency evidence in relation to complainant D, in relation to A's evidence that the accused showed her photographs of naked…

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 RD

Details

AGLC: R v RD [2012] NSWDC 242
Case: [2012] NSWDC 242
Decision Date: 27 July 2012

CaseChat Overview and Summary

The case of R v RD was heard in a court of criminal jurisdiction. The defendant, RD, was on trial for various sexual offences. The prosecution sought to introduce evidence of previous complaints made by other women, alleging that the defendant had sexually assaulted them. The nature of the dispute centred on the admissibility of this evidence under the tendency evidence provisions in the Evidence Act. The court was required to decide whether the evidence of these other complainants had sufficient probative value to outweigh the prejudicial effect it may have on the defendant.

The court considered whether the evidence of the other complainants demonstrated a tendency by the defendant to be sexually interested in young girls. This involved assessing the similarity of the acts, the distance in time between the incidents, and the risk of concoction and contamination. The prosecution argued that the evidence was highly probative of the facts in issue, while the defence contended that the risk of prejudice substantially outweighed any probative value. The court carefully weighed these competing considerations, ultimately determining that the evidence of two of the complainants had sufficient probative value and was therefore admissible. However, the evidence of the third complainant was deemed to have minimal probative value and was rejected.

The court concluded that the evidence of the first two complainants was relevant and could assist in establishing the defendant's propensity towards the charged offences. The similarity in the nature of the acts and the fact that they occurred over a period of time supported the conclusion that the evidence was probative. The court found that while there was a risk of prejudice, this was not so significant as to exclude the evidence. In contrast, the evidence of the third complainant was rejected due to a lack of significant probative value. The court ordered that the tendency evidence relating to two of the complainants be admitted, while the evidence regarding the third complainant was excluded from the trial.

Orders

Orders of the court

Tendency evidence admitted re two complainants, rejected re third 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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Medium Neutral Citation:	R v RD [2012] NSWDC 242
Hearing dates:	27/07/2012
Decision date:	27 July 2012
Jurisdiction:	Criminal
Before:	Murrell SC DCJ
Decision:	Tendency evidence admitted re two complainants, rejected re third complainant.
Catchwords:	CRIMINAL LAW- Evidence- tendency- application on voire dire to adduce evidence that the accused has a tendency to be sexually interested in young girls- evidence of other complainants from separate trials- risk of concoction and contamination- similarity of acts- distance in time- whether significant probative value to facts in issue.
Legislation Cited:	Evidence Act 1995 (Cth) ss 97, 101
Cases Cited:	R v Cittadini [2008] NSWCCA 256 Dao V R [2011] NSWCCA 63 R v PWD [2010] NSWCCA 209 AE v R [2008] NSWCCA 52 Hoch v The Queen (1998) 165 CLR 222 BP v R [2010] NSWCCA 261 R v OGD [2000] NSWCCA 404
Category:	Separate question
Parties:	The Crown RD
Representation:	Mr P Wagstaff (Crown) Mr M Smith (Accused) Office of the Director of Public Prosecutions NSW McGirr James Hall & Associates (Accused)
File Number(s):	2009/223470
Publication restriction:	There is to be no publication of the names of the complainants or any material that tends to identify the complainants.