R v Sams

[2021] NSWDC 745

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Sams [2021] NSWDC 745

Hearing dates:

07 & 08 June 2021

Date of orders:

08 June 2021

Decision date:

08 June 2021

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Allow the Crown to use the evidence of the conduct supporting the two counts, and as disclosed in the interview of 3 October 2008, for tendency purposes in accordance with the notice given

Catchwords:

EVIDENCE — Tendency evidence — Criminal proceedings

Legislation Cited:

Crimes Act 1900

Evidence Act 1995

Category:

Principal judgment

Parties:

Regina (Crown)
Jason James Sams (Accused)

Representation:

Kylie Henry (Solicitor Advocate)
William Buxton (counsel for the Accused)

Director of Public Prosecutions (NSW) (Crown)
O’Brien Winter Partners (Accused)

File Number(s):

2019/00387612

Publication restriction:

No publication of the name of the complainant or of any information that may enable their identity to be ascertained

REVISED Judgement – Tendency Evidence

Introduction

1. On 7 June 2021 Jason James Sams appeared in the District Court, Newcastle for trial. A jury was selected and after argument upon the objection raised by the accused regarding evidence of context and for tendency purposes the trial continued before me with a jury of 12.

The Offences

2. The offences with which the offender was charged were both contrary to s 66A(1) Crimes Act 1900 with the application of s 80AF Crimes Act 1900 because of the range of dates between which the offences were alleged to have occurred. Both counts were expressed in identical terms:

Between 31 December 2007 and 31 December 2010, at Thornton in the State of New South Wales, did have sexual intercourse with SS-C, a child then under the age of ten years, namely, four, five, or six years.

The Application

3. The Crown announced that it would rely upon evidence for tendency purposes pursuant to s 97 Evidence Act 1995. Before then, the accused’s counsel advised that there was “a brief issue as to context evidence”, to adopt his words, to which there was objection, contained in a pre-recorded interview of the child by police when he was about four years of age, in which he said that some things had happened with the accused.

4. Subsequently the Crown provided a bundle of material relevant to the evidence the Crown wished to adduce for these purposes, marked as Exhibit A on the voir dire. I heard argument and reserved my decision overnight. On 8 June 2021 I announced that I would permit the Crown to rely upon the evidence for tendency purposes with reasons to follow.

The Crown’s Notice

5. The Crown gave notice of the following matters in the appropriate form:

1. The indictment charged two counts;

2. The Crown sought to rely upon the complainant’s evidence as tendency evidence in respect of both counts, upon the contention that the evidence was cross admissible as tendency evidence;

3. The Crown sought to rely upon the complainant’s evidence of uncharged acts found in the second interview of the complainant on 3 October 2008;

4. The state of…