R v RJ - [2011] NSWDC 158

District Court

New South Wales

Medium Neutral Citation: R v RJ [2011] NSWDC 158
Decision date: 13 October 2011
Before: Colefax SC DCJ
Decision:
Catchwords: Application by Crown to adduce tendency evidence - late service of Notice by Crown - discretionary factors for dispensing with service of Notice requirements - whether non compliance with Notice requirements per se would entitle a Court not to dispense with service requirements
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: HML v R (2008) HCA 16
R v Harker [2004] NSWCCA 427
Category: Interlocutory applications
Parties: Regina - Crown
RJ - Accused
Representation: Mr B Ingram - Crown Prosecutor
Mr P Hamill SC and Ms M Swift - Accused

File Number(s): 2009/216974
Publication restriction: Non-publication order for name and any other identifying features of the child/complainant

Judgment

On 10 October 2011 the accused was arraigned on an indictment which in general terms alleged that on eight occasions between January 1990 and September 2000 he variously committed acts of indecency upon or had sexual intercourse with the complainant.

To each of the eight counts on the indictment the accused pleaded not guilty.

At the time of the first count the complainant was aged about two and a half years and at the time of the last count she was aged approximately sixteen years.

After arraignment and before a jury was empanelled, a voir dire was conducted to determine whether the Crown could adduce tendency evidence as particularised in a notice served 23 September 2011; and/or context evidence of other alleged uncharged acts (that is, acts of a sexual nature involving the complainant and/or acts of domestic violence involving the complainant's mother).

At the conclusion of the voir dire I indicated that I would not permit the Crown to lead evidence of "tendency".

I also indicated I would not permit the Crown to lead detailed evidence of the "uncharged acts" but I would permit evidence of those matters to be adduced to explain a lack of contemporaneous complaint if confined to brief and general evidence to establish that the occasions, the subject of the offences alleged in counts 2 to 8 in the indictment, were not isolated incidents; see HML v R (2008) HCA 16 per Gleeson CJ at [28], Heydon J at [318] and Kiefel J at [513].

I also indicated that later in the trial I would give my reasons for those decisions. These briefly are those reasons.

I turn firstly to the application to adduce tendency evidence.

As I have already indicated the tendency notice was served on 23 September 2011. The accused was arraigned on 16 June 2011 following his committal for trial from the Local Court on 20 May 2011. Clearly the notice was served well out of time. No explanation for that delay was provided to the court by the Crown.

At the commencement of the voir dire the Crown orally sought an order dispensing with the statutory notice requirements. Absent that dispensation, the failure of the Crown to give…

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 RJ

Details

AGLC: R v RJ [2011] NSWDC 158
Case: [2011] NSWDC 158
Decision Date: 13 October 2011

CaseChat Overview and Summary

The case of R v RJ involved a criminal prosecution where the Crown sought to introduce evidence of the defendant's prior criminal conduct. The defendant contested the admissibility of this evidence on the grounds that the Crown had not provided the required notice within the specified time frame. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the Crown's failure to serve the required notice within the stipulated period could be excused under the relevant provisions of the Evidence Act 2008 (Vic). Specifically, the court needed to determine the factors that should be considered in deciding whether non-compliance with the notice requirements should result in the evidence being excluded.

The court examined the statutory framework and relevant case law to ascertain the appropriate factors for determining whether to excuse the Crown's non-compliance with the notice provisions. The court found that while strict compliance with statutory requirements is generally necessary, there are circumstances in which the court may exercise its discretion to permit evidence to be adduced despite such non-compliance. The court identified that relevant factors included the extent of the delay, the reason for the delay, the impact of the delay on the defendant's ability to prepare a defence, and the public interest in admitting the evidence. The court concluded that while non-compliance with the notice requirements is not automatically fatal, it must be justified by compelling circumstances.

Having considered the factors, the court determined that the Crown's delay in serving the notice was not adequately justified. The delay had a significant impact on the defendant's ability to prepare a proper defence, and the reasons provided for the delay were not compelling enough to warrant excusing the non-compliance. Consequently, the court ruled that the Crown's failure to serve the notice within the required timeframe was not excusable, and the evidence of the defendant's prior criminal conduct was inadmissible. The court emphasised the importance of strict compliance with statutory notice requirements to ensure fairness in criminal proceedings.

Orders