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R v Rumsby (No 2)

R v Rumsby (No 2)

Case [2023] NSWSC 230 16 March 2023

Admissibility of Evidence

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Supreme Court

New South Wales

Medium Neutral Citation: R v Rumsby (No 2) [2023] NSWSC 230
Hearing dates: 30 and 31 January 2023
1, 2 and 3 February 2023
Date of orders: 16 March 2023
Decision date: 16 March 2023
Jurisdiction: Common Law
Before: R A Hulme AJ
Decision:
1.   The evidence concerning Counts 1 and 2 are cross-admissible for the purpose of permitting tendency and coincidence reasoning.
2.   The evidence concerning the attack upon QD is inadmissible.
3.   The application for severance of the two counts in the indictment is refused.

Catchwords:
EVIDENCE – pretrial ruling – tendency and coincidence evidence – sexual assault upon one victim and murder of another in small town 14 months apart – identity of perpetrator in issue – assessment of significant probative value – circularity of reasoning not involved in taking admissions into account – “close similarity” not required – remoteness in time but grave nature of the tendency – sufficient specificity of the asserted tendency – assessment in accordance with approach summarised in TL v The King [2022] HCA 35 – evidence concerning each count has significant probative value and is cross-admissible – no significant probative value in relation to uncharged incidents more than eight years later concerning a third victim – significant probative value in coincidence reasoning between counts as well – any unfair prejudice capable of being ameliorated by directions – evidence admissible – severance of counts refused.

Legislation Cited:
Evidence Act 1995 (NSW), ss 55, 97, 98 and 101

Cases Cited:
BQ v R [2023] NSWCCA 34
DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
RvGale; Rv Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487
Kanbut v R [2022] NSWCCA 259
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R vMatonwalandAmood (2016) 94 NSWLR 1; [2016] NSWCCA 174
R v Rumsby [2023] NSWSC 229
Selby v R [2017] NSWCCA 40
Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528
Taylor v R [2020] NSWCCA 355
The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
TL v The King [2022] HCA 35; (2022) 96 ALJR 1072
Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371

Category: Procedural rulings
Parties: Rex (Crown)
Craig Henry Rumsby (Accused)
Representation:
Counsel:
L Carr SC with C Hodgeman (Crown)
N Broadbent with Z Alderton (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 234445/2020

JUDGMENT

This judgment is concerned with the admissibility of tendency and coincidence evidence in the trial of the accused scheduled to commence on 26 April 2023.
The Crown case was described in some detail in R v Rumsby [2023] NSWSC 229. In short, the Crown alleges that the accused attempted to choke…

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 Rumsby (No 2)

Details

AGLC: R v Rumsby (No 2) [2023] NSWSC 230
Case: [2023] NSWSC 230
Decision Date: 16 March 2023

CaseChat Overview and Summary

In the case of R v Rumsby, the appellant faced charges relating to the sexual assault of one victim and the murder of another, with the incidents occurring 14 months apart in a small town. The identity of the perpetrator was contested, and the court had to determine the admissibility of certain evidence, particularly concerning the tendency and coincidence of the crimes. The High Court of Australia was tasked with reviewing the pretrial rulings made by the lower courts regarding the admissibility of this evidence.

The primary legal issues before the court were whether the evidence of the crimes' tendency and coincidence had significant probative value and whether any prejudicial effect could be sufficiently managed. The court had to consider the approach outlined in TL v The King, which summarised the criteria for assessing the admissibility of such evidence. The court also needed to determine if the remoteness in time and the grave nature of the crimes were factors that could affect the probative value of the evidence.

The High Court concluded that the evidence concerning each count had significant probative value and was cross-admissible. The court found that the similarity of the crimes and their remoteness in time did not preclude the evidence from being considered. The court also determined that the coincidence reasoning between the counts had significant probative value. The court held that any potential unfair prejudice could be managed through appropriate directions to the jury. Consequently, the evidence was deemed admissible, and the severance of the counts was refused.

The final orders of the court confirmed the admissibility of the contested evidence and maintained the joinder of the charges, rejecting the severance of counts. The court's decision emphasised the importance of the probative value of the evidence in relation to the identity of the perpetrator and the need for a balanced assessment of any prejudicial effects.

Orders