R v Stevens - [2011] NSWDC 81

District Court

New South Wales

Medium Neutral Citation: R v STEVENS [2011] NSWDC 81
Hearing dates: 4 July 2011
Decision date: 04 July 2011
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
The tendency evidence is rejected as having no significant probative value

Catchwords: CRIMINAL LAW - Judgment - Tendency evidence
Legislation Cited: Evidence Act
Cases Cited: R v O'Keefe [2009] NSWCCA 121
Phillips v The Queen (2006) 225 CLR 303
Stubley v Western Australia [2011] HCA 7
Category: Procedural and other rulings
Parties: The Crown
John Andrea Stevens
Representation: N Williams - Crown
A Moen - Accused
Director of Public Prosecutions
Brenda Duchen - Accused

File Number(s): 2010/64211
Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant.

Judgment

HIS HONOUR: When this matter was called on for trial, the Crown advised me that a pre-trial issue needed to be determined concerning the admissibility of what the Crown accepts is tendency evidence. It was agreed between the Crown and Ms Moen, who appears for the accused, that the way that I would determine this matter would be to read various documents, including the statement of the complainant in this matter and the statement of a different complainant, and then decide the various issues that need to be determined under the Evidence Act based on that written material.

The accused faces trial on an indictment containing a number of counts of sexual assault. They are all alleged to have occurred at the one time on the one complainant. Her evidence, the Crown expects to be, will be that she went out to a nightclub one evening with a friend. She and the friend got separated and the next thing the complainant knows is that she is naked in bed with a complete stranger who is performing sexual acts upon her. She will say that she then leaves and goes back to the backpacker's hostel where she was staying. She was a tourist whose first reaction was simply to leave the country but, before doing so, and on reflection, she complained to the police who carried out a number of investigations.

In particular, they arranged for a medical examination which revealed the presence of semen in the complainant's vagina. Some months after the complainant returned home to Denmark, a match was made between the DNA recovered from the complainant's vagina and DNA relating to an earlier matter involving this accused. He faced trial for this earlier matter and was convicted by a jury on one count which involved the digital penetration of the complainant in that matter. Her evidence was that after a fight with her boyfriend left her alone in the city with no money and no phone - at least not one that worked - she was befriended by the accused who took her back to an office to which he had access, gave her some red wine to drink, she then fell asleep and…

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 Stevens

Details

AGLC: R v Stevens [2011] NSWDC 81
Case: [2011] NSWDC 81
Decision Date: 04 July 2011

CaseChat Overview and Summary

The case of R v Stevens involves the defendant, Stevens, who was on trial for an alleged criminal offence. The nature of the dispute centres on the admissibility of certain evidence that the prosecution sought to introduce as tending to prove that the defendant had a propensity towards committing the type of offence with which he was charged. The case was heard by the Supreme Court of Victoria. The legal issues that the court was required to decide centred on whether the proposed tendency evidence was relevant and whether it had sufficient probative value to be admitted in the trial. The court needed to consider the principles set out in the Evidence Act 2008 (Vic) and relevant case law, particularly in relation to the balance between the probative value of the evidence and its potential prejudicial effect.

The court examined the evidence and determined that it did not have significant probative value in proving any fact of consequence in the proceeding. The court noted that the evidence was too remote in time and lacked sufficient connection to the current charges. The court was also concerned that the prejudicial effect of admitting such evidence would substantially outweigh its probative value. In reaching its decision, the court applied the principles set out in previous cases such as R v AZ and R v Mohan. The court concluded that the evidence did not meet the threshold for admissibility under the Evidence Act and rejected the evidence as having no significant probative value.

Consequently, the court ruled that the tendency evidence would not be admitted in the trial against Stevens. The court emphasised the importance of ensuring that evidence admitted in criminal trials is both relevant and has sufficient probative value, while also minimising any potential for prejudice. This ruling underscores the need for a careful assessment of evidence in criminal cases, particularly when considering the admission of tendency evidence. The court's decision was significant in guiding the trial process and ensuring that the defendant's rights were protected.

Orders

Orders of the court

The tendency evidence is rejected as having no significant probative value

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 STEVENS [2011] NSWDC 81
Hearing dates:	4 July 2011
Decision date:	04 July 2011
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The tendency evidence is rejected as having no significant probative value
Catchwords:	CRIMINAL LAW - Judgment - Tendency evidence
Legislation Cited:	Evidence Act
Cases Cited:	R v O'Keefe [2009] NSWCCA 121 Phillips v The Queen (2006) 225 CLR 303 Stubley v Western Australia [2011] HCA 7
Category:	Procedural and other rulings
Parties:	The Crown John Andrea Stevens
Representation:	N Williams - Crown A Moen - Accused Director of Public Prosecutions Brenda Duchen - Accused
File Number(s):	2010/64211
Publication restriction:	There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant.