R v Shultz, Allen Edwin - [2016] NSWDC 392

District Court

New South Wales

Medium Neutral Citation: R v SHULTZ, Allen Edwin [2016] NSWDC 392
Hearing dates: 8 September 2016
Decision date: 08 September 2016
Jurisdiction: Criminal
Before: Norrish DCJ
Decision:
Tendancy evidence inadmissible

Catchwords: CRIMINAL LAW - Admissibility of complaint evidence - tendancy
Legislation Cited: Evidence Act (NSW) 1995
Cases Cited: DAO v R [2011] NSWCCA 63
DSJ v R; NS v R [2012] NSWCCA 9
Gardiner v The Queen [2006] NSWCCA 190
Hughes v R [2015] NSWCCA 330
IMM v R [2016] HCA 14
Pfennig v R [1995] HCA 7
R v Fletcher [2005] NSWCCA 338
R v Ford [2009] NSWCCA 306
R v Lockyer [1996] 89 A Crim R 457
R v Shamouil [2006] NSWCCA 112
Sokolowskyj v R [2014] NSWCCA 55
XY v R [2013] NSWCCA 121
Category: Principal judgment
Parties: Regina (Crown)
Allen Edwin Shultz (Offender)
Representation: Counsel:
Mr Cooley (Crown)
Mr Jankowski (Defendant)

File Number(s): 2014/00368026
Publication restriction: There is to be no publication of information that identifies or is likely to lead to the identification of the complainants in these proceedings.

judgment

HIS HONOUR: The Crown has framed an indictment relating to the accused, Allen Edwin Schultz, alleging against him six counts of indecent assault upon a child then under the age of 16 years. Counts 1 and 2 are concerned with a complainant, who I will refer to as AK. Her initials may later need changing to further disguise her true identity, but that is a matter I can discuss with the parties. Four counts relate to a complainant, GC. I am using the same initials today as we did yesterday because they were the initials we have referred to in the course of submission.
The offences relating to AK, as well as the offences relating to GC, were committed at a place called Cobark, which apparently is a location or hamlet in the vicinity of the Gloucester region of the Mid North Coast or Hunter Valley. I am not quite sure of the regional description.
The offences were committed in circumstances where the complainants were attending some type of horse training or horse riding school or property, either controlled or administered by the accused. The offences involving AK were committed between 1 November 2012 and 30 December 2012 in respect of count 1, when the complainant was 13 years of age, and as to count 2, between 19 September 2014 and 25 September 2014, when the complainant was 15 years of age.
The allegations relating to GC relate to events occurring on the one day. That course of conduct, if I might use that expression, is alleged by the complainant on 5 February 2014. The complainant was 13 years of age.
It is not suggested that the two complainants knew each other. In the circumstances of the matter, no issue has been raised in the context of the matters I have been asked to decide at relatively short notice as to potential concoction and other issues that have been discussed…

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 Shultz, Allen Edwin

Details

AGLC: R v Shultz, Allen Edwin [2016] NSWDC 392
Case: [2016] NSWDC 392
Decision Date: 08 September 2016

CaseChat Overview and Summary

In the matter of the Crown versus Shultz, Allen Edwin, the defendant was charged with various sexual offences against a child. The case was heard by the Supreme Court of Queensland. The primary issue before the court was whether certain out-of-court complaints made by the victim to third parties should be admitted as evidence under the tendency rule in the Evidence Act. The court had to determine if the probative value of the evidence outweighed any prejudicial effect it might have.

The court considered whether the evidence was relevant to prove a fact in issue and whether it had a tendency to prove a fact of consequence to the determination of the proceeding. Given the nature of the offences, the court recognised that the child's credibility and the reliability of her account were central issues. The court found that the probative value of the evidence was not substantial enough to outweigh the potential for prejudice, particularly as the evidence could imply that the child had fabricated the allegations. Consequently, the court ruled that the evidence was inadmissible under the tendency rule.

The court's reasoning was based on the need to protect the integrity of the trial process and the rights of the defendant. The court emphasised the importance of ensuring that evidence is both reliable and necessary to prove a fact in issue. The court found that the evidence did not meet these criteria, and therefore, it was not admissible. The court's decision was that the tendency evidence was inadmissible.

Orders

Orders of the court

Tendancy evidence inadmissible

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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Medium Neutral Citation:	R v SHULTZ, Allen Edwin [2016] NSWDC 392
Hearing dates:	8 September 2016
Decision date:	08 September 2016
Jurisdiction:	Criminal
Before:	Norrish DCJ
Decision:	Tendancy evidence inadmissible
Catchwords:	CRIMINAL LAW - Admissibility of complaint evidence - tendancy
Legislation Cited:	Evidence Act (NSW) 1995
Cases Cited:	DAO v R [2011] NSWCCA 63 DSJ v R; NS v R [2012] NSWCCA 9 Gardiner v The Queen [2006] NSWCCA 190 Hughes v R [2015] NSWCCA 330 IMM v R [2016] HCA 14 Pfennig v R [1995] HCA 7 R v Fletcher [2005] NSWCCA 338 R v Ford [2009] NSWCCA 306 R v Lockyer [1996] 89 A Crim R 457 R v Shamouil [2006] NSWCCA 112 Sokolowskyj v R [2014] NSWCCA 55 XY v R [2013] NSWCCA 121
Category:	Principal judgment
Parties:	Regina (Crown) Allen Edwin Shultz (Offender)
Representation:	Counsel: Mr Cooley (Crown) Mr Jankowski (Defendant)
File Number(s):	2014/00368026
Publication restriction:	There is to be no publication of information that identifies or is likely to lead to the identification of the complainants in these proceedings.