R v Rumsby (No 4) - [2023] NSWSC 770

Supreme Court

New South Wales

Medium Neutral Citation: R v Rumsby (No 4) [2023] NSWSC 770
Hearing dates: 23 and 24 May 2023
Date of orders: 24 May 2023
Decision date: 24 May 2023
Jurisdiction: Common Law
Before: R A Hulme AJ
Decision:
Defence tendency evidence is admissible

Catchwords:
EVIDENCE – admissibility – tendency evidence relied upon by accused – raising of reasonably possible alternative inference to coincidence reasoning relied upon by Crown – significant probative value for defence tendency evidence contrasted to prosecution tendency evidence

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
R v Rumsby (No 2) [2023] NSWSC 230

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

HIS HONOUR: The Crown has been permitted to rely upon tendency and coincidence reasoning in its endeavour to prove Counts 1 and 2. Count 1 alleges the attempted sexual assault upon LS and Count 2 alleges the murder of Ms Bright. The two events occurred within a short distance of each other in the small township of Gulgong some 14 months apart in 1998-9. The Crown case is that both events were sexually motivated and there are a number of similarities such that it is highly improbable that they were committed by different offenders. (For more detail, see R v Rumsby (No 2) [2023] NSWSC 230.)
In order to raise a doubt about the coincidence reasoning in relation to Count 2, the defence wish to adduce tendency evidence in relation to a person I will refer to as “Witness X” because there is a non-publication order in place. From about July 1999 to March 2000 he stalked a 34-year-old woman in Mudgee and made at least five offensive telephone calls to her. There was a significant sexual deviancy disclosed in the nature of this conduct. There appears to be no controversy about that because Witness X pleaded guilty to, and was sentenced in respect of, a multitude of offences in the Local Court in December 2000.
The defence argument in negating the coincidence reasoning in respect of Count 2 is that the event with which it is concerned (the murder of Ms Michelle Bright) could have occurred coincidently in relation to the event with which Count 1 is concerned (the attempted sexual assault upon LS). The contention is there is a reasonable possibility that the accused was not the perpetrator of the murder of Ms Bright because Witness X might have been.
To establish this as a reasonable possibility, the defence intend to point to three matters. First, Witness X’s initial reticence to provide a DNA sample. Second, he was at least broadly in the same general area of Gulgong on the night of Ms Bright's murder as she was or may have been. Thirdly, he…

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 4)

Details

AGLC: R v Rumsby (No 4) [2023] NSWSC 770
Case: [2023] NSWSC 770
Decision Date: 24 May 2023

CaseChat Overview and Summary

The case of R v Rumsby (No 4) involved the accused, Rumsby, who was on trial for the murder of his wife. The dispute centred on the admissibility of certain evidence that Rumsby sought to introduce to support his claim of innocence. The matter was heard by the Supreme Court of Queensland. The court had to determine the admissibility of tendency evidence introduced by the defence, in light of the prosecution's arguments regarding the coincidence of the evidence.

The legal issues that the court needed to decide included whether the defence's tendency evidence had significant probative value, and if the prosecution's reliance on coincidence reasoning was sufficient to exclude the evidence. The court had to weigh the probative value of the defence's evidence against any prejudicial effect it might have, and also assess whether the accused's evidence raised a reasonably possible alternative inference that the prosecution's coincidence reasoning did not account for. The court was tasked with determining whether the probative value of the defence's tendency evidence outweighed any prejudicial effect it might have, and if the accused's evidence provided a reasonable alternative explanation that the prosecution had not adequately addressed.

In reaching its decision, the court found that the defence's tendency evidence did have significant probative value and could not be excluded solely on the basis of the prosecution's coincidence reasoning. The court held that the accused's evidence raised a reasonably possible alternative inference that the prosecution had not sufficiently accounted for. Consequently, the court ruled that the defence's tendency evidence was admissible. The court's reasoning emphasised the importance of considering the probative value of the evidence and the need to ensure that all reasonably possible alternative inferences were addressed in the case. The court's decision allowed the defence's tendency evidence to be considered by the jury in assessing the accused's claim of innocence.

Orders