R v WQ - [2016] NSWDC 385

District Court

New South Wales

Medium Neutral Citation: R v WQ [2016] NSWDC 385
Hearing dates: 10 February 2016
Date of orders: 10 February 2016
Decision date: 10 February 2016
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Tendency application denied

Catchwords: CRIMINAL – application for separate trials in relation to multiple complaints against the accused – risk of contamination were separate trials permitted – failure to establish ‘patterns of behaviour’ across all complainants – determination of the probative value of the evidence
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Shamouil [2006] NSWCCA 112
R v XY [2013] NSWCCA 121
Jones v The Queen [2014] NSWCCA 280
McIntosh v The Queen [2015] NSWCCA 104
Hughes v The Queen [2015] NSWCCA 330
Category: Principal judgment
Parties: Regina (Crown)
WQ (Defendant)
Representation: Counsel:
Mr. Rafeeq (Crown)
Mr. Williams (Defendant)

File Number(s): 2014/51244
Publication restriction: Restrictions on the publication of the accused and the complainants in this matter.

judgment

HIS HONOUR: WQ was arraigned last Tuesday on five counts on an indictment alleging sexual assaults against three different complainants.
Counts 1 and 2 concern the complainant DM and were allegations of sexual intercourse with a child under the age of 10 years. Counts 3 and 4 were counts of sexual intercourse with a child under the age of 10 years, MM, who was the sister of DM. Count 5 was an allegation of indecent assault upon the complainant KB.
Application had been made by Notice of Motion that an order be given for separate trials in respect of each complainant. For that purpose the day before the trial actually started we conducted a voir dire examination and the three complainants gave evidence. Principally the issue addressed in the course of a voir dire examination and the examination of the complainants concerned the potential, or “real risk” as it is sometimes described, of contamination or concoction in the context of the prosecution wish to rely upon “tendency” reasoning (s 97 Evidence Act 1995).
It became self-evident as the voir dire proceeded, having regard to evidence given by each of the complainants, that the only sensible way that the trial could proceed in order that all relevant matters be aired, particularly in the context of suggestions of “contamination” and the like, was for the trial to proceed in respect of the five counts as one trial and not as separate trials in relation to each complainant. This realisation came to counsel for the accused during the course of the voir dire and ultimately he withdrew his application for separate trials.
One of the issues I was required to address if I was to determine that it should be separate trials was whether the Crown could rely upon evidence from one complainant as evidence of tendency and proof of guilt of the accused in respect of allegations made by other complainants and vice versa.
Because it was seen as appropriate that the counts be heard together by the accused the urgency for…

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 WQ

Details

AGLC: R v Wq [2016] NSWDC 385
Case: [2016] NSWDC 385
Decision Date: 10 February 2016

CaseChat Overview and Summary

The accused, WQ, faced a criminal trial in the County Court of Victoria involving multiple complaints of sexual assault. The court was tasked with determining whether separate trials for each complaint should be permitted, given the risk of contamination if the evidence was heard together. The central legal issue was whether the probative value of the evidence outweighed the risk of prejudice if the complaints were heard together. The court considered the principle that evidence of other acts could be prejudicial but also recognised its potential to establish a pattern of behaviour, which could be crucial in determining the likelihood of the accused's guilt.

The court examined whether the evidence from the different complaints could demonstrate a common pattern of behaviour that would be probative of the accused's guilt. It found that while the individual acts could be highly probative, there was insufficient evidence to establish a pattern across all the complaints. The court concluded that the risk of contamination, where evidence from one complaint might unfairly influence the jury's assessment of the others, was too high. Therefore, the tendency evidence was deemed inadmissible unless it was necessary to establish a fact in issue other than the accused's disposition to commit the offence.

The court denied the application for separate trials, ruling that the probative value of the evidence when considered together did not substantially outweigh the risk of unfair prejudice. The court found that the evidence from the multiple complaints, when presented together, could effectively demonstrate the accused's propensity to commit the offences without unduly prejudicing the jury against the accused. The court emphasised the importance of ensuring that the jury could properly assess the evidence in its entirety while also protecting the rights of the accused to a fair trial.

Orders

Orders of the court

Tendency application denied

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 WQ [2016] NSWDC 385
Hearing dates:	10 February 2016
Date of orders:	10 February 2016
Decision date:	10 February 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Tendency application denied
Catchwords:	CRIMINAL – application for separate trials in relation to multiple complaints against the accused – risk of contamination were separate trials permitted – failure to establish ‘patterns of behaviour’ across all complainants – determination of the probative value of the evidence
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v Shamouil [2006] NSWCCA 112 R v XY [2013] NSWCCA 121 Jones v The Queen [2014] NSWCCA 280 McIntosh v The Queen [2015] NSWCCA 104 Hughes v The Queen [2015] NSWCCA 330
Category:	Principal judgment
Parties:	Regina (Crown) WQ (Defendant)
Representation:	Counsel: Mr. Rafeeq (Crown) Mr. Williams (Defendant)
File Number(s):	2014/51244
Publication restriction:	Restrictions on the publication of the accused and the complainants in this matter.