R v RJ

[2023] NSWDC 155

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v RJ [2023] NSWDC 155
Hearing dates:	1 May – 16 May 2023
Date of orders:	1 May 2023
Decision date:	01 May 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 10
Catchwords:	EVIDENCE – admissibility of tendency evidence – child sexual offences – accused neutral to application
Legislation Cited:	Evidence Act 1995 (NSW) ss 97, 97A
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Office of the Director for Public Prosecution (ODPP) RJ (accused)
Representation:	Counsel: Mr A O’Connor for the Crown Mr P Butterfield for the accused Solicitors: ODPP David Kelly Lawyers for the accused
File Number(s):	2019/00305678
Publication restriction:	Non-publication of accused's and complainant’s names

judgment

Background

1. The accused is charged on indictment of multiple offences of indecent assault and sexual intercourse with a single complainant child, his granddaughter. The 12 charges (some of them alternative charges) arise out of six alleged discrete episodes. The date range from the first to the last of the charges is 1 January 2015 to 1 July 2019. The complainant was aged between 8 or 13 in this overall period. All of the alleged offending is said to have been committed in the accused’s home. For all but one of the incidents, it is said that the offending occurred in one of the bedrooms in that home.

2. To prove its case, the Crown has notified the accused of its intention to rely upon tendency evidence. By s 97(1)(b) of the Evidence Act 1995 (NSW), such evidence is not admissible unless the Court thinks that the evidence will, either by itself, or having regard to evidence adduced, or to be adduced by the Crown, has significant probative value. Having regard to the nature of the alleged offences, and their timing, this question is significantly affected by s 97A(2) of the Evidence Act. In particular, these are child sexual offences for the purpose of s 97A(6) of the Evidence Act.

3. The accused is neutral about the application.

The tendency notice

4. The prescribed notice was given on 27 January 2023. As indicated, no point was taken about its validity. The notice indicated that the Crown intended to seek to rely upon the complainant’s evidence of each charged sexual act relating to the complainant as tendency evidence in respect to each other charged act in relation to the complainant.

5. The notice identified the following tendencies sought to be proved:

1. the tendency to have a particular state of mind, being a sexual interest in the complainant; and

2. the tendency to act on that particular sexual interest, by engaging in acts of sexual touching and/or penetration of the complainant.

6. The Crown also indicated, by its notice, that it intends to establish these tendencies primarily with reference to the content of electronically recorded interviews between the complainant and police, respectively, on 30 September 2019, 2 January 2020 and 16 September 2020. The application has, however, been supplemented by some other evidence as well.

7. For the purpose of the application, but also for other general purposes, the Crown, usefully, assembled an aide-memoire (MFI 1 on the voir dire) comprising a generic description of the forms of alleged touching that sustain each of the charges. For two of the alleged incidents, generating charges 7 to 8 and 11 to 12, which incorporate alternatives, there was penile vaginal intercourse. For the balance of the charges (save for charge 5) the alleged conduct comprised touching or penetration of the complainant’s vagina. For charge 5, the offending allegedly comprised grabbing the complainant’s breasts. Where there was no penetration, sometimes the touching occurred on the complainant’s clothing and sometimes on the vagina or breasts directly.

Section 97A

8. I mentioned the significant effect of this statutory provision. By s 97A(2), the Court presumes that the tendency evidence has significant appropriate data for the purpose of the Court's evaluation s 97(1)(b).

9. I noted the accused’s Counsel's neutrality on the application. That meant that none of the circumstances in s 97A(5) were cited individually or in combination that would dissuade the Court from determining that the tendency evidence did have significant probative value.

Conclusion

10. The tendency evidence is admissible.

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Amendments

17 May 2023 - Amendment made to coversheet

Decision last updated: 17 May 2023