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R v Swain

R v Swain

Case [2020] NSWDC 198 11 May 2020

Admissibility of Evidence

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Swain [2020] NSWDC 198
Hearing dates: 11 May 2020
Date of orders: 11 May 2020
Decision date: 11 May 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 29, 61, 75, 78 and 86

Catchwords:
EVIDENCE – application to lead tendency evidence – objection to cross-admissibility of tendency evidence as between complainants – objection to use of evidence of uncharged conduct as tendency evidence – objection to use of foreign criminal history – whether time gap between alleged offences overcomes relevance and probative value thresholds
CRIMINAL PROCEDURE – application for trial by judge alone – reliance upon COVID-19 pandemic
Legislation Cited: COVID-19 Legislation (Emergency Measures) Act 2020 (NSW)
Crimes Act 1900 (NSW), ss 61M, 66A, 66C
Criminal Procedure Act 1986 (NSW), ss 131, 132, 365
Evidence Act 1995 (NSW), ss 55, 91, 97, 101
Foreign Evidence Act 1994 (Cth), s 24
Interpretation Act 1987 (NSW), s 33
Cases Cited: BC v R [2019] NSWCCA 111
Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
McPhillamy v The Queen (2018) 361 ALR 13; [2018] HCA 52
R v Johnson [2020] NSWDC 153
R v Moussa [2017] NSWCCA 267
R v MPW [2020] NSWDC 170
R v SK [2011] NSWCCA 292
Regina v BD (No.1) (Judge Alone Application) [2020] NSWDC 150
RH v R [2014] NSWCCA 71
RH v The Queen (2014) 241 A Crim R 1; [2014] NSWCCA 71
TB v R [2019] NSWCCA 224
The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40
Category: Procedural and other rulings
Parties: Director of Public Prosecutions
Mr JL Swain
Representation:
Counsel:
Ms K Tennant for the Director of Public Prosecutions
Mr J O’Sullivan for the accused
Solicitors:
Solicitor for the Director of Public Prosecutions
Panwar Legal for the accused

File Number(s): 2018/367612
Publication restriction: Non Publication Order on the names of the complainants and each of the complainants’ family members, or any information that may identify any of them. Pseudonyms have been used for the names of the complainants, and each of the family members of, and persons connected to, the complainants.

Judgment

BACKGROUND

The accused is charged with 4 counts on an indictment:

that between 1 and 29 February 2004 at Watanobbi, he had sexual intercourse with TP, who at that time was under the age of 10 years, namely 7 years, contrary to s 66A of the Crimes Act 1900 (NSW);

that between 1 and 29 February 2004 at Watanobbi, he had sexual intercourse with TP, who at that time was under the age of 10 years, namely 7 years, contrary to s 66A of the Crimes Act 1900 (NSW);

that between 1 March and 1 July 2017, at Watanobbi, he had sexual intercourse with JS, a child then above the age of 10 years, but below the age of…

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 Swain

Details

AGLC: R v Swain [2020] NSWDC 198
Case: [2020] NSWDC 198
Decision Date: 11 May 2020

CaseChat Overview and Summary

In the case of R v Swain, the appellant was charged with serious sexual offences against two complainants. The case came before the court to address a series of objections regarding the admissibility of certain evidence. The objections included challenges to the cross-admissibility of tendency evidence between the two complainants, the use of evidence of uncharged conduct as tendency evidence, and the inclusion of the appellant's foreign criminal history. Additionally, there was an objection to the relevance of the evidence due to the time gap between the alleged offences and the current charges.

The court was required to determine whether the evidence of the appellant's past conduct and foreign criminal history met the relevance and probative value thresholds set out in the Evidence Act. The court also had to consider the objections to the cross-admissibility of the evidence between the two complainants and whether the time gap between the alleged offences and the current charges affected the admissibility of the evidence. Furthermore, the court needed to address the application for a trial by judge alone, which was based on the COVID-19 pandemic.

The court found that the evidence of the appellant's past conduct and foreign criminal history was admissible as it met the relevance and probative value thresholds. The court held that the time gap between the alleged offences and the current charges did not affect the admissibility of the evidence. The court also ruled that the evidence was cross-admissible between the two complainants. Regarding the application for a trial by judge alone, the court found that the COVID-19 pandemic was a valid reason to grant the application. The court ordered that the trial proceed by judge alone and that the evidence in question be admitted.

The court made several orders, including that the trial proceed by judge alone, that the evidence of the appellant's past conduct and foreign criminal history be admitted, and that the evidence be cross-admissible between the two complainants. The court also ordered that the application for a trial by judge alone be granted due to the COVID-19 pandemic.

Orders

Orders of the court

See paragraphs 29, 61, 75, 78 and 86

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Swain [2020] NSWDC 198

Most Recent Citation

R v DLW [2020] NSWDC 205

Cases citing this decision · 2 of 2 shown

R v Callaghan
[2021] NSWDC 838 Para 89

…een provided within the JIRS system. In particular, I have perused Bell v The Queen [2018] VSCA 281; Dawkins v The Queen [2018] NSWCCA 278; R v Swain [2020] NSWDC 198; and R v Ramon [2020] NSWDC 858. I have also obtained and perused R v AJ (Judge Shead SC, NSWDC, 27 August 2020, unreported), R v Burns (Judge Whitfo…
R v DLW
[2020] NSWDC 205 Para 20

…f this Court in relation to applications brought following the enactment in s 365. One of those decisions was mine, being the decision of R v Swain [2020] NSWDC 198 (11 May 2020).…

View all 2 citing cases →

Cases cited in this decision · 13 of 13 shown

R v MPW
[2020] NSWDC 170 Para 20

…en other decisions of judges of this Court that have considered this issue, in the context of the circumstances of those cases. These include R v MPW [2020] NSWDC 170 (Priestley SC DCJ) and R v Johnson [2020] NSWDC 153 (Grant DCJ).…
R v Johnson
[2020] NSWDC 153 Para 20

…considered this issue, in the context of the circumstances of those cases. These include R v MPW [2020] NSWDC 170 (Priestley SC DCJ) and R v Johnson [2020] NSWDC 153 (Grant DCJ).…
R v BD
[2020] NSWDC 150 Para 18

…eadily increasing number of cases. The accused referred me, in particular, to the views of Lerve DCJ in Regina v BD (No.1) (Judge Alone Application ) [2020] NSWDC 150, in his Honour’s decision to allow trial by Judge alone. The accused submits that factors in that case also apply to his situation.…
TB v R
[2019] NSWCCA 224 Para 50

…The Crown referred me to the decision of the Court of Criminal Appeal in TB v R [2019] NSWCCA 224. In the circumstances of that case, the Crown sought to rely upon the evidence of one complainant about sexual misconduct as tendency evidence in the case of another complainant in events occurring 14 years later.…
BC v R
[2019] NSWCCA 111 Para 66

…dence must be taken into account when assessing the strength of the probative value of the tendency evidence: Hughes v The Queen at [61]-[62]; BC v R [2019] NSWCCA 111 at [75]. By the terms of the provision, the question is whether the evidence could rationally affect a finding or findings of fact.…
Director of Public Prosecutions (NSW) v RDT
[2018] NSWCCA 293 Para 68

…On the significance of time gaps, in Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 at [36], the Court of Criminal Appeal said that where the underlying tendency is operative over an extended period, its probative value is likely to be significant, even if the occasions upon which the accused acted on…
McPhillamy v The Queen
[2018] HCA 52 Para 53

…The Crown submitted that the accused’s reliance upon McPhillamy v The Queen (2018) 361 ALR 13; [2018] HCA 52 does not assist him: the case was considered by the Court of Criminal Appeal in TB . Further, this case is distinguishable from McPhillamy because in that case, the absence of significant probative value…
R v Bauer
[2018] HCA 40 Para 3

…s to this use of tendency evidence. 1. This concession is made in the light of the High Court’s decision in The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40 at [60].…
R v Moussa
[2017] NSWCCA 267 Para 42

…in New Zealand were not proposed to be tendered for proof of the decision, or facts underlying the decision, but as an implied admission: R v Moussa [2017] NSWCCA 267. It was said that the convictions themselves were based upon guilty pleas. The New Zealand criminal history demonstrated the accused acting on his se…
Hughes v The Queen
[2017] HCA 20 Para 64

…as to rationally affect the assessment of the probability of the existence of a fact to a significant extent : Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20 at [16].…
IMM v The Queen
[2016] HCA 14 Para 67

…The Court is also to take the evidence at its highest and assume that the jury would accept the evidence: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [44], [49].…
RH v R
[2014] NSWCCA 71 Para 49

…itted that the authorities suggest that such distance in age do not foreclose the argument that the earlier conduct may manifest the tendency: RH v R [2014] NSWCCA 71 at [123]-[125].…
R v SK
[2011] NSWCCA 292 Para 68

…en within a particular range of ages, the time gap between the alleged acts may actually enhance the probative value of the tendency evidence: R v SK [2011] NSWCCA 292 per Latham J (Giles JA and Rothman J agreeing) at [26].…

Legislation cited in this decision · 5

Evidence Act 1995 (Cth)
101, 55, 91, 97 5 mentions (from Para 5)
Crimes Act 1900 (ACT)
61M, 66A, 66C 4 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW)
131, 132, 365 4 mentions (from Para 2)
Foreign Evidence Act 1994 (Cth)
24 2 mentions (from Para 60)
Interpretation Act 1987 (NSW)
33, 33) 2 mentions (from Para 24)

Medium Neutral Citation:	R v Swain [2020] NSWDC 198
Hearing dates:	11 May 2020
Date of orders:	11 May 2020
Decision date:	11 May 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 29, 61, 75, 78 and 86
Catchwords:	EVIDENCE – application to lead tendency evidence – objection to cross-admissibility of tendency evidence as between complainants – objection to use of evidence of uncharged conduct as tendency evidence – objection to use of foreign criminal history – whether time gap between alleged offences overcomes relevance and probative value thresholds CRIMINAL PROCEDURE – application for trial by judge alone – reliance upon COVID-19 pandemic
Legislation Cited:	COVID-19 Legislation (Emergency Measures) Act 2020 (NSW) Crimes Act 1900 (NSW), ss 61M, 66A, 66C Criminal Procedure Act 1986 (NSW), ss 131, 132, 365 Evidence Act 1995 (NSW), ss 55, 91, 97, 101 Foreign Evidence Act 1994 (Cth), s 24 Interpretation Act 1987 (NSW), s 33
Cases Cited:	BC v R [2019] NSWCCA 111 Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 Hughes v The Queen (2017) 344 ALR 187; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 McPhillamy v The Queen (2018) 361 ALR 13; [2018] HCA 52 R v Johnson [2020] NSWDC 153 R v Moussa [2017] NSWCCA 267 R v MPW [2020] NSWDC 170 R v SK [2011] NSWCCA 292 Regina v BD (No.1) (Judge Alone Application) [2020] NSWDC 150 RH v R [2014] NSWCCA 71 RH v The Queen (2014) 241 A Crim R 1; [2014] NSWCCA 71 TB v R [2019] NSWCCA 224 The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Mr JL Swain
Representation:	Counsel: Ms K Tennant for the Director of Public Prosecutions Mr J O’Sullivan for the accused Solicitors: Solicitor for the Director of Public Prosecutions Panwar Legal for the accused
File Number(s):	2018/367612
Publication restriction:	Non Publication Order on the names of the complainants and each of the complainants’ family members, or any information that may identify any of them. Pseudonyms have been used for the names of the complainants, and each of the family members of, and persons connected to, the complainants.