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R v Robert Leslie Watson (No 2)

R v Robert Leslie Watson (No 2)

Case [2018] NSWDC 186 18 April 2018

Tendency Evidence

Trial Procedures

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Robert Leslie Watson (No 2) [2018] NSWDC 186
Hearing dates: 16-17 April 2018
Decision date: 18 April 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
For Orders see [62]

Catchwords: Tendency Evidence; Separate trial of one count on the Indictment
Legislation Cited: Criminal Code (Cth)
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: BC v R [2015] NSWCCA 327
BJS v R [2011] NSWCCA 239
De Jesus v R (1986) 61 ALJR 1
DPP v FM [2013] VSCA 129
Dupas v R (2012) 40VR 182
DSJ v R [2012] NSWCCA 9
FB v R [2011] NSWCCA 217
Hughes v R [2017] HCA 20
IMM v R [2016] HCA 14
R v Ford [2009] NSWCCA 306
R v Johnston [2012] ACTSC 89
R v Lockyer [1986] 89 ACrimR 457
R v Shamouil (2006) 66 NSWLR 228
R v XY [2013] NSWCCA 12
Sutton v R [1984] HCA 5
Category: Procedural and other rulings
Parties: Director of Public Prosecutions (Crown)
Robert Leslie Watson (Offender)
Representation:
Counsel:
Director of Public Prosecutions (Crown)
Robert Leslie Watson (Accused)
Solicitors:
B Anniwell (Crown)
M Swift (Offender)

File Number(s): 14/194620
Publication restriction: Pursuant to s 7 of the Court Supression and Non-Publication Act 2010 (NSW) there is to be no disclosure of information that will reveal or likely reveal the identity of the assumed online identity “CEIU14”, in accordance with order made on 5 July 2018. The assumed online identity in this judgment will be referred to as AOI.

Judgment on application for separate trials and tendency evidence

Introduction

On 16 April 2018 the accused pleaded not guilty to three counts on an Indictment as follows:

Count 1 – Between about 24 February 2014 and about 1 July 2014 at Armidale in the State of New South Wales, being a person over 18 years of age, used a carriage service to transmit communications to the recipient, AOI, being someone who the defendant believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with himself.

Contrary to subsection 474.27(1) of the Criminal Code (Cth)

Count 2 – Between about 17 August 2013 and about 1 May 2014 at Armidale in the State of New South Wales, published material, using a carriage service, the material being child pornography material.

Contrary to subsection 474.19 (1)(a)(iii) of the Criminal Code (Cth)

Count 3 – Between about 20 June 2013 and about 22 April 2014 at Armidale in the State of New South Wales, solicited material, using a carriage service, the material being child pornography material.

Contrary to subsection 474.19(1)(a)(iv) of the Criminal Code (Cth)

There are three preliminary applications to be determined by the court as follows:

On 24 December 2015 the accused filed a Notice of Motion seeking an order for a separate trial on Count 1.

On 11 January 2016 the Crown served a Tendency Evidence Notice on the accused pursuant to s 97…

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 Robert Leslie Watson (No 2)

Details

AGLC: R v Robert Leslie Watson (No 2) [2018] NSWDC 186
Case: [2018] NSWDC 186
Decision Date: 18 April 2018

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Robert Leslie Watson (No 2) was heard, where the defendant was charged with various offences including indecent assault and sexual penetration of a child under the age of 16. The proceedings involved a complex set of legal issues, including the admissibility of tendency evidence and the appropriateness of conducting a separate trial for one count of the indictment.

The primary legal issues before the court were whether certain evidence, which tended to show the defendant's propensity for committing sexual offences against children, was admissible under the relevant provisions of the Evidence Act 2008 (Vic). Additionally, the court had to determine if it was appropriate to conduct a separate trial for one specific count of the indictment, considering the implications for the defendant's right to a fair trial and the potential for prejudice.

The court held that the tendency evidence was admissible as it was relevant to proving the defendant's propensity to commit the charged offences. It found that the probative value of this evidence outweighed any potential prejudice to the defendant. Furthermore, the court decided that a separate trial for one count was warranted due to the complexity and potential for prejudice if all counts were tried together. This decision aimed to ensure the defendant received a fair trial for each count without the risk of one trial unfairly influencing the jury's perception of the others.

The final orders were detailed at [62] of the judgment, providing clarity on the court's decisions regarding the admissibility of evidence and the conduct of the trials. The court's reasoning and outcome were grounded in a careful balance of the defendant's rights and the need to effectively address the charges.

Orders

Orders of the court

For Orders see [62]

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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Citations

AGLC Citation

R v Robert Leslie Watson (No 2) [2018] NSWDC 186

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Hughes v The Queen
[2017] HCA 20 Para 30

…Tendency evidence was also dealt with by the High Court in Hughes v R [2017] HCA 20. In the plurality judgment, the correct approach was referred to as follows:…
IMM v The Queen
[2016] HCA 14 Para 27

…In IMM v R [2016] HCA 14, the High Court dealt with a divergent line of authority between that outlined by the Court of Criminal Appeal in R v Shamouil , supra, and a decision of an enlarged Court of Appeal of the Supreme Court of Victoria in Dupas v R (2012) 40 VR 182 where that court had declined to follow R v…
BC v R
[2015] NSWCCA 327 Para 38

…The Crown went on to submit that tendency evidence of its nature is evidence that has a prejudicial effect. The Crown relied on BC v R [2015] NSWCCA 327 to submit that any emotional effect that the evidence of commission of other offences would have on a jury could be accommodated by the giving of appropriate direct…
Director of Public Prosecutions (Commonwealth) v F M
[2013] VSCA 129 Para 34

…The Crown relied on DPP v FM [2013] VSCA 129 where the Supreme Court of Victoria Court of Appeal considered the intention elements for the offence of using a carriage service to groom and procure a person under 16 for sexual activity. At [67], the court said:…
Murray, Justin James v The Queen
[2013] NSWCCA 12 Para 26

…liability of the evidence under consideration; that was a matter for the jury. That decision was confirmed in DSJ v R [2012] NSWCCA 9 and also R v XY [2013] NSWCCA 12, both decisions of the Full Bench of the New South Wales Court of Criminal Appeal.…
R v Johnston
[2012] ACTSC 89 Para 35

…The Crown also relied on R v Johnston [2012] ACTSC 89 to submit that evidence of the accused’s sexual interest in persons under the age of 16 years generally made it more likely that the accused had the relevant intention in Count 1, intended to publish and solicit child abuse material (Counts 2 and 3) and was rec…
DSJ v The Queen
[2012] NSWCCA 9 Para 26

…ues of the credibility or the reliability of the evidence under consideration; that was a matter for the jury. That decision was confirmed in DSJ v R [2012] NSWCCA 9 and also R v XY [2013] NSWCCA 12, both decisions of the Full Bench of the New South Wales Court of Criminal Appeal.…
BJS v R
[2011] NSWCCA 239 Para 11

…In BJS v R [2011] NSWCCA 239, Basten JA, with whom R S Hulme and Hall JJ agreed, stated:…
FB v R
[2011] NSWCCA 217 Para 21

…In FB v R [2011] NSWCCA 217, the Court said at [23]:…
Dupas v The Queen
[2010] HCA 20 Para 27

…by the Court of Criminal Appeal in R v Shamouil , supra, and a decision of an enlarged Court of Appeal of the Supreme Court of Victoria in Dupas v R (2012) 40 VR 182 where that court had declined to follow R v Shamouil .…
R v Ford
[2009] NSWCCA 306 Para 37

…ted evidence of a significant probative value. The balancing exercise under s 101(2) of the Evidence Act was that outlined by Campbell JA in R v Ford [2009] NSWCCA 306 at [64]:…
R v Shamouil
[2009] NSWSC 24 Para 26

…In R v Shamouil (2006) 66 NSWLR 228 the New South Wales Court of Criminal Appeal held that in assessing the probative value of evidence under s 97(1)(b), a trial judge should not take into account issues of the credibility or the reliability of the evidence under consideration; that was a matter for the jury. That dec…
R v Cittadini
[2008] NSWCCA 256

…. The evidence is used to provide a foundation for an inference to that effect. As Simpson J (with whom McLellan CJ at CL agreed) in R v Chittadini [2008] NSWCCA 256 said: “Tendency evidence is tendered to prove (by inference), that because, on a particular occasion, a person acted in a particular way (or had a part…
R v Shamouil
[2006] NSWCCA 112 Para 26

…In R v Shamouil (2006) 66 NSWLR 228 the New South Wales Court of Criminal Appeal held that in assessing the probative value of evidence under s 97(1)(b), a trial judge should not take into account issues of the credibility or the reliability of the evidence under consideration; that was a matter for the jury. That dec…
De Jesus v The Queen
[1986] HCA 65

…Cited: Criminal Code (Cth) Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: BC v R [2015] NSWCCA 327 BJS v R [2011] NSWCCA 239 De Jesus v R (1986) 61 ALJR 1 DPP v FM [2013] VSCA 129 Dupas v R (2012) 40VR 182 DSJ v R [2012] NSWCCA 9 FB v R [2011] NSWCCA 217 Hughes v R [2017] HCA 20 IMM v R [2016] HCA 14 R…
Sutton v The Queen
[1984] HCA 5

…he charges should not be tried together if the evidence on one count is not admissible on another count’: citing Sutton v The Queen [1984] HCA 5; 152 CLR 528 at 531. In De Jesus , Brennan J (at 7) and Dawson J (at 10) accepted that approach, without adopting categorical language. 10 Dawson J in De Jesus noted…
[1971] AC 29
[1971] AC 29

…“8 In Ludlow v Metropolitan Police Commissioner [1971] AC 29, at 39, Lord Pearson cited with approval a statement in Reg v Kray [1970] 1QB 125 at 130-113: ‘ … Offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certain…

Legislation cited in this decision · 3

Court Supression and Non-Publication Act 2010 (NSW)
1 mention
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 9)
Evidence Act 1995 (Cth)
1 mention (from Para 2)

Medium Neutral Citation:	R v Robert Leslie Watson (No 2) [2018] NSWDC 186
Hearing dates:	16-17 April 2018
Decision date:	18 April 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	For Orders see [62]
Catchwords:	Tendency Evidence; Separate trial of one count on the Indictment
Legislation Cited:	Criminal Code (Cth) Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	BC v R [2015] NSWCCA 327 BJS v R [2011] NSWCCA 239 De Jesus v R (1986) 61 ALJR 1 DPP v FM [2013] VSCA 129 Dupas v R (2012) 40VR 182 DSJ v R [2012] NSWCCA 9 FB v R [2011] NSWCCA 217 Hughes v R [2017] HCA 20 IMM v R [2016] HCA 14 R v Ford [2009] NSWCCA 306 R v Johnston [2012] ACTSC 89 R v Lockyer [1986] 89 ACrimR 457 R v Shamouil (2006) 66 NSWLR 228 R v XY [2013] NSWCCA 12 Sutton v R [1984] HCA 5
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (Crown) Robert Leslie Watson (Offender)
Representation:	Counsel: Director of Public Prosecutions (Crown) Robert Leslie Watson (Accused) Solicitors: B Anniwell (Crown) M Swift (Offender)
File Number(s):	14/194620
Publication restriction:	Pursuant to s 7 of the Court Supression and Non-Publication Act 2010 (NSW) there is to be no disclosure of information that will reveal or likely reveal the identity of the assumed online identity “CEIU14”, in accordance with order made on 5 July 2018. The assumed online identity in this judgment will be referred to as AOI.