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R v Williams (a pseudonym)

R v Williams (a pseudonym)

Case [2020] NSWDC 836 26 June 2020

Child Sexual Assault

Admissibility of Evidence

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District Court

New South Wales

Medium Neutral Citation: R v Williams (a pseudonym) [2020] NSWDC 836
Hearing dates: 19 June 2020
Decision date: 26 June 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
1. The proposed prosecution tendency evidence can be admitted at trial.
2. The defence application for separate trials for each complainant is refused.

Catchwords:
CRIME - child sexual assault sexual intercourse – proposed joint trial - three complainants.
EVIDENCE – admissibility of tendency evidence - temporal difference between counts - different genders - nature of relationship between accused and complainant.
CRIMINAL PROCEDURE - pre-trial rulings - separate trial application - admissibility of tendency evidence.

Legislation Cited:
Crimes Act 1900
Evidence Act 1995

Cases Cited:
BC v R [2015] NSWCCA 327
BC v R [2019] NSWCCA 111
DJW v R [2015] NSWCCA 164
DPP vRDT [2018] NSWCCA 293
DS v R [2018] NSWCCA 195
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
Lockyer v R (1996) 89 A Crim R 457
McPhillamy v The Queen [2018] HCA 52
RH v R [2014] NSWCCA 71
Shamouilv R [2006] NSWCCA 112; (2006) 66 NSWLR 228
SK v R [2011] NSWCCA 292
TB v R [2019] NSWCCA 224
The Queen v Bauer (a pseudonym) [2018] HCA 40

Category: Procedural rulings
Parties: Scott Williams (the accused)
Director of Public Prosecutions
Representation:
Counsel:
Mr Z Khan (for the accused)
Ms N Keay, Crown Prosecutor
Solicitors:
Legal Aid NSW (for the accused)

File Number(s): 2018/88052; 2018/311339; 2018/287604;
Publication restriction: Pseudonyms have been used for the names the offender and the complainants. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act there is to be no publication of a complainant’s name or anything that may lead to identification of them including the name of the accused. There is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child. Identifying information will be removed from any published version of the judgment to comply with the statute.

Judgment

Introduction

The trial of Scott Williams (a pseudonym) is listed to commence later in 2020. The present indictment, amended by leave, contains 16 Counts: indictment version 8.4. It sets out allegations by three complainants. The several counts relating to each complainant have been joined in a single indictment. It is proposed they be tried together. A tendency notice has been served and filed. It is proposed that evidence of each charged act be admissible as circumstantial evidence in proof of each other charged act relating to each complainant and cross-admissible in counts relating to a specific complainant. And, for the same reason, evidence of any uncharged act alleged is said to be admissible in proof of each charged act.
Evidence that a person had a particular tendency is adduced for the purpose of providing the foundation for an inference that the accused was more likely to act in a particular way or have a…

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 Williams (a pseudonym)

Details

AGLC: R v Williams (a pseudonym) [2020] NSWDC 836
Case: [2020] NSWDC 836
Decision Date: 26 June 2020

CaseChat Overview and Summary

In the case of R v Williams, the defendant faced serious charges of child sexual assault involving three complainants. The matter was heard in the relevant court where the primary issue was the admissibility of tendency evidence in relation to the allegations against the defendant. A further matter was the application for separate trials for each complainant. The court was tasked with determining whether the evidence of past sexual misconduct could be used to demonstrate a propensity towards the alleged offences, and whether separate trials would be appropriate given the nature of the charges and the complainants involved.

The court considered the temporal difference between the alleged offences and the differing genders of the complainants. It also examined the nature of the relationship between the defendant and the complainants. The court found that the evidence of past sexual misconduct was relevant to show a propensity towards the alleged offences, despite the differences in time, gender, and relationship. The court held that the tendency evidence was admissible as it was relevant to the issues in dispute and had probative value that outweighed any prejudicial effect. Regarding the application for separate trials, the court ruled that a joint trial was appropriate to ensure efficiency and fairness, particularly given the similarities in the nature of the allegations and the potential for prejudice if the complainants testified separately.

The court's decision was that the proposed prosecution tendency evidence could be admitted at trial. It also refused the defence application for separate trials for each complainant. The court's ruling ensured that the evidence could be presented in a manner that was both fair and efficient, while also respecting the rights of the accused. The orders of the court were clear, allowing the trial to proceed with the admissibility of the tendency evidence and a joint trial for all three complainants.

Orders

Orders of the court

1. The proposed prosecution tendency evidence can be admitted at trial.

2. The defence application for separate trials for each complainant is refused.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

R v Williams (a pseudonym) [2020] NSWDC 836

Most Recent Citation

R v Williams (a pseudonym) (No 2) [2021] NSWDC 12

Cases citing this decision · 1 of 1 shown

R v Williams (a pseudonym) (No 2)
[2021] NSWDC 12 Para 2

…The defence application to separate the trials of each complainant is refused: see R v Williams (a pseudonym) [2020] NSWDC 836.…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

TB v R
[2019] NSWCCA 224 Para 18

…Keay, Crown prosecutor, spoke to a number of authorities: RH v R [2014] NSWCCA 71 at [88] – [130]; DPP v RDT v R [2018] NSWCCA 293 at [36]; TB v R [2019] NSWCCA 224 at [87] to [105]; SK v R [2011] NSWCCA 292 at [39] – [43]; DJW v R [2015] NSWCCA 164 and BC v R [2015] NSWCCA 327 at [99] to [101].…
BC v R
[2019] NSWCCA 111 Para 21

…legal liability, would not be led at trial to prove any tendency, avoiding the need for direction envisaged in DS v R [2018] NSWCCA 195 and BC v R [2019] NSWCCA 111. Evidence about these earlier events would be raised only to give context to the allegations in the counts and explain George’s responses to the events…
Director of Public Prosecutions (NSW) v RDT
[2018] NSWCCA 293 Para 18

…Ms Keay, Crown prosecutor, spoke to a number of authorities: RH v R [2014] NSWCCA 71 at [88] – [130]; DPP v RDT v R [2018] NSWCCA 293 at [36]; TB v R [2019] NSWCCA 224 at [87] to [105]; SK v R [2011] NSWCCA 292 at [39] – [43]; DJW v R [2015] NSWCCA 164 and BC v R [2015] NSWCCA 327 at [99] to [101].…
McPhillamy v The Queen
[2018] HCA 52 Para 19

…reference to TB v R [2019] NSWCCA 224, at [97] to [103], she sought, as the Court of Criminal Appeal did there, to distinguish McPhillamy v The Queen [2018] HCA 52. She asked me to look beyond the mere fact there was a 10 year temporal gap in alleged offending and focus on how the accused’s sexual interest took…
R v Bauer
[2018] HCA 40 Para 12

…reasoning requires some common feature, or features, of or about the offending, that links the respective complaints: The Queen v Bauer (a pseudonym) [2018] HCA 40, at [58].…
DS v R
[2018] NSWCCA 195 Para 21

…accused was below the age of legal liability, would not be led at trial to prove any tendency, avoiding the need for direction envisaged in DS v R [2018] NSWCCA 195 and BC v R [2019] NSWCCA 111. Evidence about these earlier events would be raised only to give context to the allegations in the counts and explain Geo…
IMM v The Queen
[2016] HCA 14 Para 11

…bative value of the tendency evidence must take the evidence at its highest without consideration of its credibility and reliability: IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300, at [52].…
BC v R
[2015] NSWCCA 327 Para 18

…018] NSWCCA 293 at [36]; TB v R [2019] NSWCCA 224 at [87] to [105]; SK v R [2011] NSWCCA 292 at [39] – [43]; DJW v R [2015] NSWCCA 164 and BC v R [2015] NSWCCA 327 at [99] to [101].…
DJW v R
[2015] NSWCCA 164 Para 18

…88] – [130]; DPP v RDT v R [2018] NSWCCA 293 at [36]; TB v R [2019] NSWCCA 224 at [87] to [105]; SK v R [2011] NSWCCA 292 at [39] – [43]; DJW v R [2015] NSWCCA 164 and BC v R [2015] NSWCCA 327 at [99] to [101].…
RH v R
[2014] NSWCCA 71 Para 18

…Ms Keay, Crown prosecutor, spoke to a number of authorities: RH v R [2014] NSWCCA 71 at [88] – [130]; DPP v RDT v R [2018] NSWCCA 293 at [36]; TB v R [2019] NSWCCA 224 at [87] to [105]; SK v R [2011] NSWCCA 292 at [39] – [43]; DJW v R [2015] NSWCCA 164 and BC v R [2015] NSWCCA 327 at [99] to [101].…
R v SK
[2011] NSWCCA 292 Para 18

…of authorities: RH v R [2014] NSWCCA 71 at [88] – [130]; DPP v RDT v R [2018] NSWCCA 293 at [36]; TB v R [2019] NSWCCA 224 at [87] to [105]; SK v R [2011] NSWCCA 292 at [39] – [43]; DJW v R [2015] NSWCCA 164 and BC v R [2015] NSWCCA 327 at [99] to [101].…
R v Shamouil
[2009] NSWSC 24 Para 8

…the defined term “probative value”, the critical word is could; putting focus on the capability of the evidence: Shamouil v R [2006] NSWCCA 112; (2006) 66 NSWLR 228 at [61]; emphasis in original .…
R v Shamouil
[2006] NSWCCA 112 Para 8

…When considering the defined term “probative value”, the critical word is could; putting focus on the capability of the evidence: Shamouil v R [2006] NSWCCA 112; (2006) 66 NSWLR 228 at [61]; emphasis in original .…

Legislation cited in this decision · 3

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention (from Para 6)
Evidence Act 1995 (Cth)
1 mention

Medium Neutral Citation:	R v Williams (a pseudonym) [2020] NSWDC 836
Hearing dates:	19 June 2020
Decision date:	26 June 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	1. The proposed prosecution tendency evidence can be admitted at trial. 2. The defence application for separate trials for each complainant is refused.
Catchwords:	CRIME - child sexual assault sexual intercourse – proposed joint trial - three complainants. EVIDENCE – admissibility of tendency evidence - temporal difference between counts - different genders - nature of relationship between accused and complainant. CRIMINAL PROCEDURE - pre-trial rulings - separate trial application - admissibility of tendency evidence.
Legislation Cited:	Crimes Act 1900 Evidence Act 1995
Cases Cited:	BC v R [2015] NSWCCA 327 BC v R [2019] NSWCCA 111 DJW v R [2015] NSWCCA 164 DPP vRDT [2018] NSWCCA 293 DS v R [2018] NSWCCA 195 IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 Lockyer v R (1996) 89 A Crim R 457 McPhillamy v The Queen [2018] HCA 52 RH v R [2014] NSWCCA 71 Shamouilv R [2006] NSWCCA 112; (2006) 66 NSWLR 228 SK v R [2011] NSWCCA 292 TB v R [2019] NSWCCA 224 The Queen v Bauer (a pseudonym) [2018] HCA 40
Category:	Procedural rulings
Parties:	Scott Williams (the accused) Director of Public Prosecutions
Representation:	Counsel: Mr Z Khan (for the accused) Ms N Keay, Crown Prosecutor Solicitors: Legal Aid NSW (for the accused)
File Number(s):	2018/88052; 2018/311339; 2018/287604;
Publication restriction:	Pseudonyms have been used for the names the offender and the complainants. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act there is to be no publication of a complainant’s name or anything that may lead to identification of them including the name of the accused. There is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child. Identifying information will be removed from any published version of the judgment to comply with the statute.