R v Wong, Zany

[2010] NSWDC 32

CITATION:	R v Wong, Zany [2010] NSWDC 32
HEARING DATE(S):	15/02/10 and 16/02/10
JUDGMENT DATE:	18 February 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	1.Crown application to lead Coincidence Evidence rejected. 2.Crown application to lead Tendency Evidence rejected. 3.Defence application for severance of indictment is granted so that each indictment presented refers to one complainant only 4.Portions of the Apology Ceremony as set out in the judgement will be admitted as indicated. The remainder of the Apology Ceremony is excluded subject to Crown or defence applying for further portions to be admitted to redress balance or give fuller explanation.
CATCHWORDS:	Criminal Law - Interlocutory Judgment - Application for severence of charges - Applications to exclude evidence of apology - exclude tendency and coincidence evidence - excluse uncharged acts - identification of matters constituting tendency - reasons for admitting evidence of apology.
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	AE v R [2008] NSWCCA 52 Hock v The Queen (1988) 165 CLR 292
PARTIES:	Regina Zany Wong
FILE NUMBER(S):	2009/00066126
COUNSEL:	Crown: N Williams Defence: A Robinson

JUDGMENT

1. Zany Wong is of Chinese heritage and Burmese origin. On 15 February 2010 he had been arraigned upon ten counts of sexual assault. These assaults were said to involve three female victims also members of the Burmese Chinese community located in North Western Sydney. Four acts of indecency are said to have been committed upon one Lynn H. between January 2001 and December 2001 (Counts 1 to 4).

2. Between January 2002 and December 2004 he is said to have committed some acts of sexual intercourse and one act of indecency upon PS who was then aged under 16 (Counts 5 to 9). Finally, sometime in 2007 he is said to have committed an act of indecency upon Yin C. Upon the arraignment of the accused being completed, Mr Robinson of counsel sought rulings in respect of four oral applications.

• Application for severance of charges i.e. Counts 1 to 4 (Lynn H). Counts 5 to 9 (P.S.) and Count 10 Yin C.
• An application for exclusion of evidence arising from an “apology” ceremony of 24 May 2009.
• Application for exclusion of alleged tendency and coincidence evidence sought to be relied upon by the Crown.
• An application for exclusion of uncharged acts.
  

3. Initially the Crown opposed all applications, on more mature reflection overnight, the Crown conceded its evidence of uncharged acts or acts against a fourth complainant should play no part in the trial. In that situation I need not determine the matter.

Application to Severance of the Indictment

4. The application for severance was necessarily contingent upon whether tendency evidence was to be allowed. The alleged tendencies to be relied on were to be found in similarities exposed by evidence of his dealings among the various complainants nominated in the indictment. The Crown had served a Tendency Evidence Notice and a Coincidence Evidence Notice on 22 October 2009. Each notice nominated identical slabs of evidence as constituting relevant tendency…