R v RM - [2009] NSWDC 253

CITATION: R v RM [2009] NSWDC 253

HEARING DATE(S): 23 - 26 March 2009

JUDGMENT DATE:
26 March 2009

JURISDICTION: Crime

JUDGMENT OF: Murrell SC DCJ

CATCHWORDS: CRIMINAL LAW - Application for separate trials - tendency evidence relating to types of conduct - probative value - possibility of concoction

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986 s 29
Evidence Act 1995 s 55 and 97

CASES CITED: AW v R [2009] NSWCCA 1
De Jesus (1986) 22 A Crim R 375
Hoch v The Queen (1988) 165 CLR 292
R v Colby [1999] NSWCCA 261
R v Ellis (2003) 58 NSWLR 700
R v Fletcher [2005] NSWCCA 338
R v Harker [2004] NSWCCA 427
R v Lockyer (1996) 89 A Crim R 457
R v Milton [2004] NSWCCA 195
R v OGD No2 [2000] NSWCCA 404
R v RN [2005] NSWCCA 413

PARTIES: Regina
RM

FILE NUMBER(S): 2007/00006176

COUNSEL: N Williams of Counsel for the Crown
S Corish of Counsel for the Accused

SOLICITORS: NSW Director of Public Prosecutions
Penelope Purcell Solicitors

The Alleged Offences

1 The accused stands indicted on 11 counts involving five complainants (D, G, M, J & B) and three types of conduct:

2 The alleged offences were perpetrated in about 2003/2004 at the accused’s South Coast residence. They involved a particular group of friends. Members of the group attended the accused’s home, where he supplied them with alcohol, cannabis and pornography and paid them to participate in the "games".

The Contentions about Tendency Evidence and Separation of Trials

3 Initially, the accused sought a stay of the proceedings on the basis that the Crown had not adequately particularised the charges.

4 Following clarification of the evidence on a voir dire inter alia to determine whether tendency evidence should be admitted, the Crown particularised the charges by alleging that counts one and two (tree run and group masturbation involving M.), counts three and four (tree run and group masturbation involving B) and counts 10 and 11 (tree run and group masturbation involving D) occurred on the same occasion.

5 The Crown contended that, as counts 1 to 4, 10 and 11, related to the one occasion and each complainant is a witness in the trials involving the other two complainants, the six counts should be heard together. The accused accepted that submission.

6 The Crown contended that, as to the remaining five counts, evidence of each count should be admitted as tendency evidence in relation to each of the other 10 counts. In addition, the Crown sought to adduce…

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 RM

Details

AGLC: R v RM [2009] NSWDC 253
Case: [2009] NSWDC 253
Decision Date: 26 March 2009

CaseChat Overview and Summary

The case of R v RM involved a defendant who was charged with a series of sexual offences. The trial judge refused to grant an application for the defendant to be tried separately on a charge of indecent assault. The defendant appealed against this decision, contending that there was a real possibility that the jury would convict him based on the evidence of the other charges rather than on the evidence of the indecent assault. The High Court of Australia heard the appeal and considered whether the trial judge had erred in his assessment of the probative value of the evidence in relation to the indecent assault charge.

The court was required to consider whether the probative value of the evidence relating to the other charges outweighed any prejudicial effect it might have on the defendant's trial for the indecent assault. The court also considered whether the trial judge had erred in his assessment of the possibility of concoction of evidence by the complainant. The High Court noted that the trial judge had made a detailed assessment of the probative value of the evidence and had concluded that it was necessary to admit the evidence in order to properly understand the context of the indecent assault charge.

In its judgment, the court held that the trial judge had not erred in his assessment of the probative value of the evidence or in his assessment of the possibility of concoction. The court held that the trial judge had properly considered the evidence and had made a reasoned decision that the probative value of the evidence outweighed any prejudicial effect it might have on the defendant's trial for the indecent assault. The court also held that the trial judge had properly considered the possibility of concoction and had concluded that it was not a significant factor in the case. The appeal was dismissed.

Orders