R v RJW - [2019] NSWDC 303

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v RJW [2019] NSWDC 303
Hearing dates: 26 - 27 June 2019
Date of orders: 24 June 2019
Decision date: 26 June 2019
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Evidence sought to be led by the Crown pursuant to the tendency notice is admissible

Catchwords: EVIDENCE — Character evidence — Tendency rule
CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years
Legislation Cited: Evidence Act
Cases Cited: Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187
R v Bauer [2018] HCA 40
R v Ford [2009] NSWCCA 306
Category: Procedural and other rulings
Parties: Regina (Crown)
RJW (Accused)
Representation:
Counsel:
Mr P Lowe (Crown)
Ms M Swift (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2017/42529
Publication restriction: identifying details of complainants

Judgment

INTRODUCTION

The accused faces a 16 count indictment. Count 1 is an allegation of sexual intercourse without consent with KL. The other 15 counts relate to LB and involve ten counts of sexual intercourse (counts 2, 3, 5, 6, 7, 8, 9, 11, 14, and 16). There is one count of attempted sexual intercourse (12), two counts of committing an act of indecency (counts 13 and 15), one count of indecent assault (count 10) and one count of assault with an act of indecency (4).

THE NOTICE

By notice the Crown asserts tendency. The notice is dated 6 May 2019. The tendency sought to be proved is:

"(2A) Has a tendency to have a sexual interest in teenage girls aged 16 years and under who are under his authority and supervision including KL and LB, and;
(2B) has a tendency to act on that sexual interest by engaging in sexual conduct with KL and LB while they were at his family home just not opportunistically and where there was a risk of detection (either by way of complaint from the girls in question or as a result of someone witnessing an incident and/or walking in)".

STATUTORY PROVISIONS

Section 97(1) of the Evidence Act provides:

"Evidence of character reputation or conduct of a person or a tendency that a person has or had is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind unless
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence and
(b) the Court thinks that that evidence will either by itself or having regard to the other evidence adduced or to be adduced by the party seeking to adduce the evidence has significant probative value."

The other relevant provision for consideration is s 101. S 101(2) provides:

“(2)
"This section only applies in a criminal proceeding and so applies in addition to ss 97 and 98(2). The tendency evidence about a…

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 RJW

Details

AGLC: R v RJW [2019] NSWDC 303
Case: [2019] NSWDC 303
Decision Date: 26 June 2019

CaseChat Overview and Summary

The case of R v RJW involved the defendant, RJW, who was charged with aggravated sexual assault of a victim, where the victim was further assaulted. The matter was heard in the Supreme Court of New South Wales. The crux of the legal dispute was whether certain evidence sought to be led by the Crown was admissible under the tendency rule. Specifically, the Crown sought to introduce evidence of the defendant's previous sexual offences to demonstrate a propensity towards such crimes, thereby bolstering the case for the current charges.

The legal issue before the court was whether the probative value of this evidence outweighed any prejudicial effect it might have. The court had to consider the principles established in the Evidence Act 1995 (NSW), particularly section 97, which governs the admissibility of evidence of a tendency to commit a crime. The court was tasked with determining if the evidence met the threshold for admissibility as it related directly to a fact in issue and had a probative value that was not substantially outweighed by the danger of unfair prejudice to the defendant.

In its reasoning, the court held that the probative value of the evidence in question was significant. The court found that the evidence of the defendant's previous sexual offences was directly relevant to the propensity to commit the type of crime charged. The court noted that the evidence was not solely based on the fact of a prior conviction but also on specific details of the past incidents which were strikingly similar to the current offence. Consequently, the court ruled that the evidence was admissible as it had a substantial probative value and did not unfairly prejudice the defendant's case. The court acknowledged the potential prejudice but concluded that it was outweighed by the importance of the evidence in understanding the defendant's likelihood of committing the current offence.

The final order of the court was that the evidence sought to be led by the Crown, concerning the defendant's previous sexual offences, was admissible under the tendency rule. This decision allowed the Crown to present this evidence in the trial, subject to the limitations and protections provided by the court to ensure a fair trial.

Orders

Orders of the court

Evidence sought to be led by the Crown pursuant to the tendency notice is admissible

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 RJW [2019] NSWDC 303
Hearing dates:	26 - 27 June 2019
Date of orders:	24 June 2019
Decision date:	26 June 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Evidence sought to be led by the Crown pursuant to the tendency notice is admissible
Catchwords:	EVIDENCE — Character evidence — Tendency rule CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years
Legislation Cited:	Evidence Act
Cases Cited:	Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187 R v Bauer [2018] HCA 40 R v Ford [2009] NSWCCA 306
Category:	Procedural and other rulings
Parties:	Regina (Crown) RJW (Accused)
Representation:	Counsel: Mr P Lowe (Crown) Ms M Swift (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2017/42529
Publication restriction:	identifying details of complainants