R v Rumsby (No 2)

[2023] NSWSC 230

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

1. 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.

2. 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 LS with intent to have sexual intercourse without her consent (Count 1) and that he murdered Michelle Bright (Count 2).

3. The victims were aged 18 and 17 respectively. The events are alleged to have occurred in public places about 500m apart in Gulgong (pop. 2000) in the early hours of the morning on 1 January 1998 (Count 1) and on 27 February 1999 (Count 2).

4. The primary defence is that the accused was not the perpetrator. The accused has also indicated there are features of the attacks upon each victim that are in issue, particularly in respect of Ms Bright. ^[1]

   1. Accused’s written submissions (AWS) [50]-[52]

5. R v Rumsby dealt with an objection to the admissibility of admissions made in respect of each offence to undercover police officers on 11 August 2020. It was held that the evidence was admissible.

6. The Crown relies upon evidence in support of each count on the indictment as being cross-admissible as tendency evidence in respect of the other count. It also relies upon the evidence concerning an alleged sexual assault of a young woman, QD, in November 2007 as tendency evidence in respect of both counts.

7. The Crown also relies upon coincidence reasoning in relation to Counts 1 and 2, relying upon the asserted similarities between the two events and the circumstances in which they occurred.

8. The accused contends that the evidence is inadmissible because there is not significant probative value as required by ss 97(1)(b) and 98(1)(b) of the Evidence Act 1995 (NSW) and because the probative value of the evidence does not outweigh the danger of unfair prejudice as required by s 101(2).

9. The accused accepts that reasonable notice in writing has been provided: ss 97(1)(a) and 98(1)(a).

10. The parties agree that s 97A does not apply.

The law

11. The applicable provisions of the Evidence Act are in Pt 3.6, particularly ss 97, 98 and 101.

12. The authorities are well known and in relation to tendency evidence include IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [42]-[44], [52]; Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [16]-[18], [39]-[41], [56]-[65]; The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [47]-[82]; McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 at [16]-[32]; and TL v The King [2022] HCA 35; (2022) 96 ALJR 1072 at [28]-[30]. ^[2]

    2. The provision of pinpoint references is not intended to indicate that attention to the cases has been restricted to those passages.

13. In relation to coincidence evidence, the authorities include R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487; R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174; and Selby v R [2017] NSWCCA 40.

The Crown case in relation to each count

14. The following is mostly drawn from those parts of the respective written submissions summarising the relevant factual matters for each Count.

Attack upon LS

15. LS was 18 years old on 1 January 1998. At about 3.45am she was standing outside a house in Herbert Street, Gulgong waiting for someone to deliver cannabis to her. She was attacked by a male. Her boyfriend at the time, Shane Cheesewright, heard her screams, came out and chased the male away. Police were called and attended promptly.

16. Gregory Parsey (police officer at the time) made a notebook entry at 4am on 1 January 1998: ^[3]

    3. The transcription of this in the accused’s written submissions (AWS) has been corrected to conform as much as possible with the source. (Item 9, Annexure A, to the Crown Tendency Notice).

3/3 HERBERT STREET, GULGONG

[LS’ name and date of birth]

ABOUT 3.45AM 742593

MALE, 23-24 OLD.

WHITE, 175, THIN/MED.

DRESS SHIRT, WHITE

BLUE STRIPES

RED BOXERS, NO

SHOES

SHAVED. GINGER HAIR.

MOUSTACHE/RED. 3 DAY

GROWTH

WHAT ARE DOING.

NO YOU [?] YOU WANT

A ROOT, DO SAY.

PULLED DRESS OFF.

17. LS made a statement in September 2019. She described a male being of average build, with short-cropped hair, Caucasian, in his early 30’s, who “looked dirty” and who “didn’t have any shoes on”, and a shirt that also “looked dirty”.

18. The accused’s written submissions (AWS) summarised LS having described the following in her 2019 statement: ^[4]

    4. In paragraphs [14]-[16], punctuation corrected.

1. The male grabbed her around the neck.

2. The male hit her in the face about three times.

3. The male threw her to the ground while saying “shut up, shut up”.

4. The male held his hand on her throat.

5. The male removed her underwear, but they remained on one of her legs, and pulled her dress up.

6. The male forced her legs apart and hit her hard in the face.

7. The male put his hand over her mouth and said “If you don’t stop screaming, I am really going to hurt you. I’ll kill you. You would prefer to be awake wouldn’t you.”

8. The male tried to kiss her on the lips.

9. She felt pressure on her vagina.

19. LS and Mr Cheesewright were taken to the police station. During the journey, at about 4.30am, the accused was seen and he was spoken to by police and his details obtained.

20. The submissions contend that there is conflicting evidence in the brief as to whether, at that time, the complainant identified the accused as her attacker. However, the accused accepted the force of High Court authority to the effect that tendency evidence should be assessed by taking the Crown case at its highest and on the basis that the jury will accept it without considering matters of reliability or credibility unless the evidence could not be accepted by a rational jury: IMM v The Queen; TL v The King.

21. A significant piece of evidence supporting the identification of the accused is the fact that his wallet was found at the scene of the attack the next morning.

22. LS declined to complete and sign a statement in 1998 and the matter was not further pursued at that time. She explained in her 2019 statement that she was embarrassed; such matters were not spoken about in her family; and she “did not want people to know that some filthy bloke tried to have sex with me”.

Attack upon Ms Bright

23. Ms Bright was last seen alive at some time after 12.30am on 27 February 1999, walking home down Herbert Street in the direction of Barney’s Reef Road after attending a birthday party. There were no eyewitnesses to the attack upon her and her body was not found until the afternoon of Tuesday 2 March 1999. It was in long grass between Barney’s Reef Road and a railway line, about 500 metres from where the attack upon LS had occurred just over a year before.

24. Dr Paul Botterill performed an autopsy on 4 March 1999. The cause of death was “homicidal violence of an undetermined aetiology”. The ability to make definitive findings was impeded by the effects of decomposition but the doctor expressed the following opinions: [5]

    5. Dr Botterill autopsy report, para [6], item [24] of Tendency Notice.

1. No injuries were identified that were sufficient to have caused death alone.

2. No equivocal post-mortem features of lethal blunt force violence.

3. No evidence of penetrating wound violence.

4. No unequivocal evidence of sexual assault, although that possibility prior to death “cannot be completely excluded”.

5. No bruising was identified around the neck or face.

6. The bones of the face and skull were intact.

25. Dr Botterill gave evidence at a coronial inquest in 2009. He confirmed that the manner and cause of death were not known. He said that what led to his conclusion that the death was caused by homicidal violence of an undetermined aetiology was a combination of the lack of evidence to support a natural cause of death, the injuries that he did find, and the position and situation of the body, i.e. the bra being torn or cut and the pants being down around the lower part of the legs. ^[6]

    6. Dr Botterill inquest evidence 24.2.09, p9.

26. Dr Botterill said there were two possible non-natural cases of death, being strangulation with a broad ligature and suffocation. ^[7]

    7. Dr Botterill inquest evidence 24.2.09, pp10.14, 11.24.

27. He did not identify any equivocal signs of perineal injuries, being the area surrounding the entrance to the vagina and the anus. In short, he was unable to say anything definitive as to whether there were, or were not, such injuries. ^[8]

    8. Dr Botterill inquest evidence 24.2.09, p8.18.

28. Despite the absence of unequivocal autopsy findings, the state of the clothing strongly supports an inference that the attack was sexually motivated.

Attack upon QD

29. The Tendency Notice is dated 23 September 2022. It gave notice of the Crown’s intended reliance for tendency reasoning upon evidence not only as between the two counts in the indictment but also upon the evidence of three other alleged victims of sexual assaults. However, in its submissions at the pre-trial hearing the Crown withdrew its reliance upon the evidence of two of those three alleged victims.

30. The following description of the factual basis of the Crown case concerning an alleged attack upon QD has been largely drawn from the accused’s written submissions in respect of which the Crown took no issue. ^[9]

    9. AWS [104]-[110]; CWS [65].

31. QD was aged about 17 years 11 months at the time of the incident in question, November 2007. She made a complaint at Auburn police station on 27 November 2007, with an officer recording that “… she had been sexually assaulted over the past week by her mother’s brother-in-law Craig Rumsby”. Another officer recorded that day that QD had complained that on various occasions the accused had:

1. Slapped her across the bottom.

2. Grabbed her on the bottom before grabbing her breasts.

3. Attempted to kiss her and said things like, “You know you want me”.

4. “Cornered” her in the kitchen area, grabbed her breasts, attempted to kiss her, and then “placed his hands down her pants where he has inserted his fingers into her vagina” for “about 3-5 minutes” and then stopped.

32. QD did not make a statement in 2007 and nor did other witnesses. She made a statement on 4 September 2020 in which she described how she was related to the accused and that he used to call in at around 6am for a cup of coffee at the home where she was living for a time. The only other person in the house was a female adult who was asleep in a bedroom. QD was sleeping in the lounge room and would be the one who would answer the door. Commencing on about the sixth such visit she said the following occurred:

1. The accused squeezed her on her bottom after she opened the door to him.

2. On the next occasion, after he had finished his coffee, he tried to kiss her on the lips but she pulled away.

3. On the next and last occasion, he grabbed her around the waist and placed his hand around her throat and “applied pressure to my throat with his hand. It was enough pressure that I was having trouble breathing.” She tried to call out but did not get a response. She “struggled” and “ended up on my back on the kitchen floor” and one of the nails in the floor “dug into my right butt cheek” and “pierced the skin of my bottom and caused it to bleed”. The accused then got back on top of her, held both her hands above her head with one of his hands, undid his pants and pulled her pants down, then “put his penis in my vagina” for about 30 seconds.

33. The accused’s submissions contend that QD’s complaint in 2007 is “markedly different” from the 2020 statement. Once again, matters of credibility and reliability need to be put aside.

The facts in issue

34. It is necessary to have in mind the facts in issue in order that an assessment may be made of the probative value of the tendency evidence.

35. The primary fact in issue in relation to both counts in the indictment is the identity of the perpetrator of the attack upon each young woman. Details of the attacks are in issue as well, particularly in the case of the murder of Ms Bright, but it would be open to the jury in respect of both counts to conclude that there was a sexual component. That is clear on the Crown case in relation to Count 1 concerning LS. It is not as clear in relation to Count 2 in which case the crime scene and pathologist’s evidence is capable of supporting a view that the perpetrator either had in mind engaging in some form of sexual activity as the initial motivating factor, or that it was something that arose during the course of the attack.

The tendency alleged

36. The Tendency Notice identifies the following as the tendencies sought to be proved. I have taken the liberty of modifying the age range specified to accommodate the Crown’s withdrawal of reliance upon two of the other alleged victims of sexual assault.

The accused’s tendency to have a particular state of mind, namely, a sexual interest in females, including strangers, in their late teenage years [17-18].

His tendency to act upon that state of mind by committing sexual violence upon them opportunistically.

37. The notice specifies the following as “common features of the allegations” upon which the Crown relies (modified for the same reason).

1. The allegations all concern females aged [17-18 years].

2. The incidents took place between 1998 and [2007].

3. The victims were vulnerable by virtue of the locations and the timing of the attacks.

4. The attacks upon all women … involved the accused physically overpowering them.

5. The attacks upon LS, the deceased and QD involved the accused applying pressure to their throats so as to restrict their breathing.

6. The attacks upon LS and QD involved the accused forcing them to the ground onto their backs and attempting to have, or having, penile-vaginal intercourse.

Whether to have regard to the admissions made on 11 August 2020

38. The accused contended that on the assumption the admissions made on 11 August 2020 were going to be allowed into evidence, it would involve “a high degree of unhelpful circularity” to have regard to them in assessing the probative value of the tendency evidence.

39. Both s 97(1)(b) and s 98(1)(b) stipulate one of the two factors required for admissibility of tendency or coincidence evidence is whether:

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (Emphasis added)

40. The accused submitted: ^[10]

However, there is a rational limitation to the extent to which the accused’s admissions bear upon the probative value of the tendency evidence. Relying on the accused’s admissions that he committed the offence against [LS] as tendency evidence in support of the charge against Ms Bright, and simultaneously relying on the admissions that he committed the offence against Ms Bright as tendency evidence in support of the charge against [LS], is plainly circular. That is particularly so where the accused’s admissions to specific conduct or specific acts are relied upon in support of the accused’s admissions to other specific conduct or acts: see, for example, the accused’s admission to [UCO] Rob that he “tackled” [LS] to the ground, and that he struck Ms Bright to the jaw (CWS-TC at [49](a)).

10. AWS [85]; accused’s written submissions in reply (AWS Reply) [57]; T96.25.

41. The submissions continued with reference to matters relevant to the probative value of the admissions; for example, by arguing that “there are many aspects of Mr Rumsby’s admissions which may constitute an acceptance of guilt, but do not otherwise fit with the Crown case theory”. ^[11] Once again, it is necessary to take the evidence at its highest.

    11. AWS Reply [59].

42. The Crown submitted that “the admission evidence … is available and capable of being used as ‘other evidence’, which taken together with the tendency evidence, makes significantly more likely any facts making up the elements of the offences charged”. ^[12]

    12. CWS [36].

43. The Crown submissions are sound. It would be rather artificial to make an assessment of the probative value of the tendency evidence (and coincidence evidence) without reference to the admissions. For example, surely the admission that in respect of the attack upon Ms Bright, “I covered her mouth over so she couldn’t breathe.…” may be relevant to whether the accused had a tendency to carry out an attack with that feature which bears upon the likelihood that he attempted to choke LS.

44. I am not persuaded that there is circularity of reasoning involved in having regard to the accused’s admissions in the assessment of the probative value of the tendence evidence. Nor do I consider there is a risk that the jury might engage in circular reasoning.

45. It is not uncommon for a prosecution to involve reliance by the Crown upon the evidence of two complainants as being cross-admissible because it is relevant for establishing a tendency. BQ v R [2023] NSWCCA 34 is a recent example. I cannot recall it being argued in such a case that there would be circularity of reasoning involved in considering the evidence of complainant 1 in establishing a tendency that is relevant to the alleged commission of offences against complainant 2 and vice versa.

46. The fact that the standard of proof by the prosecution of an accused’s alleged tendency is not beyond reasonable doubt has some relevance to this. Without reference to that standard of proof, a jury could assess the evidence concerning each complainant and decide that the asserted tendency has been established and then deploy it with all of the other evidence in deciding whether the offences against one or the other or both complainants have been proved beyond reasonable doubt. It can also be the case that a jury may decide that the evidence concerning one complainant directly establishes the offences alleged to have been committed against him/her, and then consider whether that also establishes a tendency that is relevant to proof of the offences in respect of the other complainant.

Need for “close similarity”

47. In Hughes v The Queen the High Court considered “the extent to which, if at all, evidence of conduct adduced to prove a tendency is required to display features of similarity with the facts in issue before it can be assessed as having ‘significant probative value’”: at [1] per Kiefel CJ, Bell, Keane and Edelman JJ. Their Honours held (at [39]):

Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence. (Emphasis added)

48. In the unanimous judgment in TL v The King at [28]-[30], the Court said the following about the assessment of probative value generally and when “close similarity” may be required:

Assessment of the probative value of evidence requires that the possible use to which the evidence might be put be taken at its highest. Taking evidence at its highest assumes that the evidence is reliable and credible. This assumption will only be displaced where the evidence could not be accepted by a rational jury. To be admissible under s 97(1)(b), the court must think that the evidence will have significant probative value, based on an assessment of the evidence both by itself and “having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence”. For evidence to have “significant probative value”, it “should make more likely, to a significant extent, the facts that make up the elements of the offence charged”; in other words, the evidence must be “important” or “of consequence” to the assessment of the probability of the existence of a fact in issue. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.

There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence. Such a rule is not required by the text of s 97. The authorities establish that similarity is relevant to, but not determinative of, probative value. Indeed, universal rules are to be avoided, as the relevant facts are determinative in tendency cases. Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of “significant probative value”. That is because, while generalised tendency notices may be supported by a broader array of evidence, that evidence will often not be significantly probative of the fact or facts in issue. The specificity of the tendency has a direct impact on the strength of the inferential mode of reasoning. Put in different terms, that is why tendency evidence must have significant probative value. Otherwise, s 97 is reduced to relevance, which is addressed in s 55.

The majority’s observation in Hughes as to the general requirement for “close similarity” where identity is the relevant fact in issue should be understood as postulating a situation in which there is little or no other evidence of identity apart from the tendency evidence, and the identity of the perpetrator is “at large”. In this case, there was important evidence of identity, including the evidence that the appellant was one of only three persons who had the opportunity to inflict the fatal injuries and the evidence pointing against the likelihood that either the mother or the nephew was the perpetrator. In the face of this important evidence, it could not be assumed that “close similarity” between the conduct evidencing the tendency and the offence was required to meet the threshold of significant probative value. (Footnotes omitted)

49. The accused contended that the present was a case in which “the approach in Hughes would apply”. ^[13] It was submitted that contrary to the Crown submissions, this case is distinguishable from TL v The King. The additional pieces of evidence in relation to identification referred to by the Crown were not analogous to being “one of only three persons who had the opportunity to inflict the fatal injuries” (TL v The King at [30]). The accused invited the court “to make an informed assessment of whether or not there is close similarity between the conduct evidencing the tendency and the offence”. ^[14]

    13. AWS [44]-[48].

    14. AWS Reply [49], [52].

50. The Crown submitted there is “other important circumstantial evidence relating to identification” but in any event there are close and important similarities between the accused’s conduct evidencing the asserted tendency and the alleged offences: ^[15]

    15. CWS [11]-[12].

1. The closeness in age of each of the three females.

2. The vulnerability of each of those females at the time of the alleged attacks due to their location and circumstances.

3. The physical overpowering of the females.

4. The application of pressure to the throat or neck area so as to restrict breathing.

5. The forcing of the female to the ground followed by attempted or actual penile-vaginal sexual intercourse.

51. As indicated above (at [35]), the primary fact in issue in this case is the identity of the perpetrator of the attacks upon LS and Ms Bright. The accused has, however, indicated that there are features of the alleged attacks that are also in issue. The alleged tendency has a bearing upon both issues.

52. The “other evidence” of identity according to the Crown is obviously the admissions made on 11 August 2020. Taken at their highest, they are admissions of being the perpetrator of the attack upon each victim. ^[16] Even without that evidence, the Crown says there is in respect of Count 1: ^[17]

1. Direct identification evidence by LS and Mr Cheesewright.

2. Circumstantial identification evidence based upon the accused’s personal belongings found in close proximity to and soon after the attack.

3. Evidence of opportunity, namely the accused’s presence in the [relatively small] Gulgong township on NYE 1997/8.

   16. CWS [15].

   17. CWS [16]-[17].

53. In relation to Count 2 the Crown referred to: ^[18]

    18. CWS [18].

1. The accused’s living arrangements as at February 1999 and his departure shortly after the discovery of Ms Bright’s body.

2. Evidence as to the accused’s movements on the evening of 26 February 1999.

3. Evidence as to the accused’s knowledge of the birthday party attended by Ms Bright on that evening.

4. Evidence as to the accused’s attempts to obtain an alibi for that night.

54. This is not a case in which there was “little or no other evidence of identity apart from the tendency evidence and the identity of the perpetrator is ‘at large’”: TL v The King at [30]. The admissions and the other evidence of identification referred to by the Crown removes this from being a case in which “close similarity” is required for there to be significant probative value. However, the specificity of the tendency remains to be assessed in order to determine that issue.

Remoteness in time and the gravity of the tendency

55. The accused’s submissions ^[19] referred to The Queen v Bauer at [50] and [55] and Taylor v R [2020] NSWCCA 355 at [108]-[109] in submitting that “the remoteness in time … and the gravity of the tendency evidence compared to the charged acts will be relevant to an assessment of whether the evidence has significant probative value”. This is uncontroversial.

    19. AWS [42].

56. There was 14 months between the attacks upon LS and Ms Bright and then about 8.5 years until the attack upon QD. The gravity of the conduct involved is not, however, dissimilar in that each of the three events involved overpowering, including a choking or similar action, a young woman who was vulnerable in the circumstances, for the intended purpose of having sexual intercourse against her will (or, possibly in the alternative in the case of Ms Bright, giving rise to the opportunity for that to occur). The specificity of the conduct renders the gaps between its occurrence less significant than it otherwise might be.

Specificity of the asserted tendency and significant probative value

57. The accused contended the assertion of a tendence that have a sexual interest in “females, including strangers, in their late teenage years to early twenties” is “in very broad compass” and that the description of the tendency overall is at a “very high level of generality”. ^[20] The Crown’s decision to confine the evidence to LS, Ms Bright, and QD dampens that criticism somewhat.

    20. AWS [49], [55], [56].

58. Whether the “females” were known, or not known, to the accused seems unimportant. On the Crown case, the accused happened across LS and Ms Bright by chance and whether he knew either or both of them was of no significance (except perhaps in explaining why he killed Ms Bright, because she might recognise him). The qualification, “including strangers”, perhaps is simply to emphasise that it does not matter for proof of the tendency whether the victim was known or not.

59. The accused asserted a lack of precision in the terms “sexual violence” and “opportunistically” in the second part of the description of the tendency alleged. Considered in the context of what is alleged in respect of each of LS, Ms Bright and QD, the concept of “sexual violence” appears clear enough and the Crown described “opportunistically” thus: ^[21]

[I]n the sense that it involved a practice or policy of exploiting circumstances or opportunities to gain immediate advantage, rather than following a predetermined plan.

21. CWS [25].

60. The Crown submitted, and I accept, that there is evidence in the accused’s admissions supporting the proposition that the murder of Ms Bright had a sexual component, namely that he moved her bra in order to “play with her the tits” because “she had a nice set” and that wanted to “root her” (but claimed he did not). ^[22] The admission that he killed her because “what happens if she woke up while I was, if I was fuckin’ her … If she woke up and spotted who it was” is also relevant. ^[23] As previously indicated, the accused’s suggestion that such admissions should be ignored because of circular reasoning is rejected.

    22. CRT pp 191, 447.

    23. CRT p 450.

61. The accused submitted that there was no connection between a tendency of a person to commit a sexual assault and a tendency of a person to commit murder. ^[24] That may by so, but there is no requirement for the description of a tendency to conform with the description of the offence: Kanbut v R [2022] NSWCCA 259 at [64] (Beech-Jones CJ at CL). In proving the murder of Ms Bright the Crown is proposing to rely upon a piece of circumstantial evidence, namely that the accused had the tendencies identified in the Tendency Notice. The question is whether the evidence has significant probative value in that context (and vice versa).

    24. AWS [99].

62. The accused accepted there were some similarities between the attacks upon LS and Ms Bright, namely their age and the near geographical proximity. However, he contended that detracting from this was the separation of the two events by a period of about 14 months and the lack of forensic evidence to support a theory that the attack upon LS was similar to any attack upon Ms Bright and the presence of evidence suggesting the contrary. Accordingly, there was no significant probative value in support of tendency required for cross-admissibility between Counts 1 and 2. ^[25]

    25. AWS [101]-[103].

63. In relation to QD, the accused submitted there were also a number of differences that did not “sit neatly within the scope of the tendency contended for”. Her age was similar but there was a significant gap in time with no suggestion of offending in the intervening period; she was well-known to the accused; and the location was very different (suburban Sydney). The circumstances of the first two incidents were of a substantially lower order of comparative seriousness and while the final incident was more serious, the conduct was said to be “distinct” from that which occurred in relation to LS and Ms Bright. For these reasons the accused contended there was no significant probative value arising from the incidents concerning QD. ^[26]

    26. AWS [117]-[127].

64. I am satisfied that there is significant probative value in relation to the attacks upon LS and Ms Bright. They are each capable of establishing the tendencies described by the Crown in the Tendency Notice. It is a tendency that has sufficient specificity in that the interest and the conduct described is not common in ordinary human experience. The victims described make up a very discrete portion of the population and the term “sexual violence” is to be understood by the facts alleged which have quite distinctive features.

65. I am significantly influenced by the similarities in the conduct of the perpetrator of the two attacks. They include in the case of LS a threat, “I’ll kill you”, and (obviously) in Ms Bright’s case her murder. That they were both of a similar age, on the cusp of adulthood; were vulnerable by being alone in a relative dark place; and their resistance was suppressed by compression of the neck/throat are also very significant.

66. The evidence strongly supports the existence of the tendencies alleged which in turn are potentially important and of consequence in establishing that the accused was the perpetrator of each of the two attacks.

67. I am not so satisfied in respect of the attacks upon QD. The circumstances of these attacks do not need to be similar to those upon LS and Ms Bright to have significant probative value but the differences do detract from such a conclusion. They comprised, as the accused contended, an escalating course of conduct in the confines of a house where he was a visitor. The feature of applying compression to the complainant’s throat is quite distinctive. However there is no suggestion of the accused acting upon the asserted tendency of committing sexual violence opportunistically in the 8-9 years since the attacks upon LS and Ms Bright.

Unfair prejudice

68. The accused referred to the familiar description in Hughes v The Queen at [17] of the various ways in which the reception of tendency evidence may occasion prejudice. It serves to highlight the need for jury directions to be focused upon those which may arise in a particular trial.

69. The submissions proceeded in part by arguing that the probative value of the evidence in this case is of a lower order (e.g. in relation to LS, “the probative value of the tendency evidence is minimal”) and would not be sufficient to outweigh the danger of unfair prejudice. ^[27] However, it has already been held that the evidence has significant probative value.

    27. AWS [157]-[159].

70. Arguments concerning the jury being overborne with the evidence of QD and a further two complainants have fallen away with the Crown abandoning its reliance upon the evidence of the two and my holding that the evidence concerning QD does not have significant probative value. ^[28]

    28. AWS [160].

71. It is accepted that s 101(2) has work to do as a safeguard against the potential risk of a miscarriage of justice resulting from the admission of tendency evidence: Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528 at [56]. However, this is a case which is amenable to directions to a jury as to the permissible and impermissible uses of the evidence which may be readily understood and applied thereby avoiding misuse.

72. I am satisfied the probative value of the evidence outweighs the danger of unfair prejudice to the accused.

73. The evidence concerning Counts 1 and 2 is cross-admissible for potential use by the jury of tendency reasoning.

Coincidence evidence

74. The Crown served a Coincidence Notice at the same time as it served the Tendency Notice. The “two or more events” the subject of the proposed evidence are the attack upon LS and the murder of Ms Bright. The asserted purpose of the evidence is to prove:

1. the accused did the acts as alleged by the Crown, that is assaulted [LS], that assault having a sexual connotation, and murdered Michelle Bright, that event also having a sexual connotation;

2. by reasoning that it was improbable the events and the circumstances surrounding the events did occur by coincidence; and

3. the events and the circumstances surrounding the same are not the acts of different persons; and

4. the events and circumstances surrounding the same, permit an inference to be drawn as to the state of mind of the accused at the time of each of the two events, that being a desire for sexual gratification and a willingness to act upon the same.

75. The Crown asserted that there are nine similarities between the two events (and, it seems, the circumstances in which they occurred) that support its contention that it is highly improbable the events occurred by coincidence and that therefore the same offender was responsible for both.

76. In R v Gale; R v Duckworth at [31] Simpson J set out a series of steps involved in the assessment of admissibility of coincidence evidence. (It is noted that the “sixth step” requires modification in that s 101(2) now refers to probative value outweighing the danger of unfair prejudice.)

77. It was noted in Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 at [781], referring to Selby v R [2017] NSWCCA 40, that the existence of dissimilarities is not critical to a determination of whether the evidence has significant probative value.

78. The accused conceded the first five similarities relied upon by the Crown:

1. The attacks were upon a young female (aged 17 or 18).

2. They occurred in the early hours of the morning.

3. They occurred in a dark isolated area.

4. Their respective locations were on the same length of road within a few hundred metres of each other.

5. They occurred in a small country town with a population of approximately 2000.

   79. The next item is:

6. the events occurred “approximately 1 year” prior/after the other.

   80. This is not a “similarity”. The Crown foresaw the possibility of this finding by submitting that even if this were so, it did not deprive the evidence of its capacity to be utilised for the purpose of coincidence reasoning. ^[29]

       29. CWS [99].

   81. The next three “similarities” do meet that description:

7. The attacks involved the victim either being grabbed on the throat area and having a hand placed over her mouth, accompanied by a threat to kill her (LS) or the victim having a hand placed over her mouth to stop her breathing (Ms Bright).

8. They each involved the victim being struck to the face.

9. They were each sexually motivated.

   82. The accused’s submissions suffer the shortcoming of leaving out of consideration the admissions made on 11 August 2020. ^[30] For reasons given earlier I am not satisfied this is a correct approach.

       30. AWS [179]-[182].

   83. Contrary to the accused’s submissions, ^[31] there is sufficient evidence that the attack upon Ms Bright involved a hand being placed over her mouth to stop her breathing aside from his admissions that he did so. It is in the evidence given by Dr Botterill at the coronial inquest in 2009 that the most likely non-natural causes of death were strangulation with a broad ligature or suffocation by placing something over the mouth. Dr Botterill could not be definitive about this and suggested an alternative theoretical cause being “subtle head injury”, but his evidence does not need to be considered in the absence of the accused’s admissions which supports the doctor’s ligature/suffocation theory.

       31. AWS [179].

   84. The accused contended there was no evidence of items 8 and 9 but it is to be found in the admissions and has been referred to previously (at [40], [43]).

   85. The primary submission made by the accused in relation to this coincidence evidence issue is that a finding that the accused committed the offence against LS says little about whether he committed the offence against Ms Bright, and vice versa:

   There is no clear modus operandi, no significant and distinct shared features, and a number of similar features arise largely from the circumstances in which the two events occur, rather than any fact that points to the identity of the offender.

   86. The same submissions in relation to consideration of whether probative value outweighs the danger of unfair prejudice made by the accused in relation to tendency evidence were relied upon. ^[32]

       32. AWS [185].

   87. Adopting the correct approach ^[33] of assessing the combined force of similarities capable of being established upon the evidence, I am satisfied that there is significant probative value in establishing that the accused was the perpetrator of the attacks upon both LS and Ms Bright. It would be little short of extraordinary that there could be by sheer coincidence different perpetrators of two vicious attacks upon females 17-18 years of age in the early hours of the morning in dark and relatively secluded locations only a few hundred metres apart in a small town like Gulgong, where in each case there was a physical assault with a sexual component which included overcoming resistance, or the potential for resistance, by striking the victims to the face and restricting their ability to breathe. The fact these attacks occurred 14 months apart does not detract from a potentially powerful inference that the same perpetrator was responsible.

       33. R v MR [2013] NSWCCA 236 at [9]-[10], [78]-[79], R v Matonwal & Amood at [73].

   88. An issue was raised in the accused’s reply submissions at the pre-trial hearing ^[34] as to whether a particular person was a viable suspect in lieu of the accused and thereby provided a reasonable alternative hypothesis that was relevant to the assessment of the probative value of coincidence evidence. Reliance was placed on the judgment of Whealy J in DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9 at [78]. Addressing questions there posed by Whealy J, I am not of the view that this controversial alternative hypothesis robs the evidence of its otherwise cogent (potential) capacity to establish a fact in issue, namely that the accused was the perpetrator of the two attacks.

       34. AWS Reply [94].

   89. As was the case with tendency evidence, I am satisfied that the probative value of the evidence outweighs any danger of unfair prejudice, having regard to the directions the jury will receive as to its appropriate use and impermissible misuse.

Severance

90. It was accepted that if either tendency or coincidence evidence were to be permitted the application for severance of counts would fail. That is the case.

Conclusions

91. The evidence concerning Counts 1 and 2 are cross-admissible for the purpose of permitting tendency and coincidence reasoning.

92. The evidence concerning the attack upon QD is inadmissible.

93. The application for severance of the two counts in the indictment is refused.

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Endnotes

Decision last updated: 19 July 2023