On 19 October 2017 AC was arraigned before the list Judge in this registry (i.e. the Parramatta Registry) on an indictment which contained 14 counts. The indictment was somewhat idiosyncratically drafted, but the gist of it was that in the period 1986 to 2009 he, in various ways, allegedly sexually assaulted 5 prepubescent girls, one of whom was his own daughter.
Upon his arraignment, AC pleaded not guilty and, accordingly, a trial date was fixed for 26 March 2018 with an (optimistic) estimate of between 10 and 15 days.
By the combined effect of s 97 and s 99 of the Evidence Act, Part 31.5 of the Uniform Civil Procedure Rules, and s 53.10C of the District Court Rules, unless the Court otherwise ordered, any tendency notice to be relied upon by the Crown had to be given to the accused 28 days before 19 October 2017. No such notice had been served and the Court had not otherwise ordered.
It would seem that no express mention was made at the arraignment on 19 October 2017 of any application on the part of the accused to have separate trials for the counts for each of the five complainants.
However, his Honour, by consent, did make a discretionary pre-trial disclosure order in accordance with s 143 (2) of the Criminal Procedure Act in the following terms:
"…The Court orders that the Notice of Defence Response is to also contain the following discretionary matters:
… Notice of any significant issue the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials of the charges."
There is no evidence that any such notice was given to the Crown. It may be assumed, therefore, that it was not given.
I pause to observe that because five complainants were referred to in the indictment it was at least on the cards that the accused might have anticipated that the Crown would be relying on tendency evidence. It is also at least on the cards that, absent any cross-admissibility issues such as tendency, the accused's legal advisors may then have had a legitimate forensic purpose in acquiescing in the somewhat unusual step in having all of the complainants giving their evidence before one jury.
R v AC [2018] NSWDC 127 | Case summary | Zoe
The matter was listed for mention before the list Judge on 22 February 2018 to confirm the trial date.
One of the orders made by his Honour on that occasion was that any tendency notice to be relied upon by the Crown was to be served "before the end of the week". As 22 February 2018 was a Thursday, that direction (upon its proper construction) meant that any tendency notice was to be served upon the accused's solicitors no later than 5pm, 23 February 2018. His Honour also confirmed the trial date of 26 March 2018.
No tendency notice was served by the Crown by 5pm, 23 February 2018.
However, a document purporting to be a tendency notice was "served" in two tranches on the solicitors for the accused on 20 and 21 March 2018 i.e. one month after the relevant date for compliance and just days before the trial date.
No application for leave to extend the time for service of that notice had been made by the Crown before it was "served".
The matter was again listed before the list Judge on 22 March 2018. The Crown mentioned the matter for the accused. The Crown did not inform the Court that the Court's direction of 22 February 2018 regarding the service of a tendency notice had not been complied with; nor did the Crown seek any extension of time to regularise what it had already done in the previous two days.
On 26 March 2018, the trial was placed in my list as the acting list Judge. No application was made at that time by the Crown to extend the time for the service of the tendency notice.
The trial date was subsequently vacated because there was no Judge available to whom the trial could be allocated; and it has been listed for hearing in the Court's vacation rolling list commencing 25 June 2018.
At the time the hearing date was vacated, I was informed that there were pre-trial issues that it was desirable be determined before the (next) hearing date. I agreed to undertake those pre-trial hearings.
Accordingly, the Crown sought and obtained leave to file an amended indictment. That indictment gave rise to procedural difficulties because it was not capable of being entered into the Justice Link system without the end date on certain counts being removed.
The voir dire hearing on those pre-trial issues (contained within a Notice of Motion filed by the solicitors for the accused on 22 March 2018) was adjourned until 20 April 2018 in order that the problems concerning the electronic filing of the indictment could be considered.
On 20 April 2018 those problems had not been overcome. The Justice Link support team was aware of the problem that I identified on 26 March 2018 - and, as I understand it, has been for some time. Indeed I have been informed that a number of senior members of the Court registry staff, both in the Parramatta Registry and in other places, have been concerned at the implications of electronically entering indictments into the Justice Link system by leaving off the end dates. I, like those registry staff, am of the opinion that the removal of any end date which appears on an indictment from the Justice Link entry would result in an erroneous entry being made in the Court's computer system.
On 20 April 2018 in order to try to progress the matter I granted leave to the Crown to file in Court an amended indictment bearing that date. However, I directed that my associate was not to manually process the entry of that indictment onto JusticeLink because of the concerns I have just expressed. And I noted that it was a matter for the Parramatta District Court Registrar as to whether or not the indictment would be entered by any member of the registry staff into the Justice Link system.
Following the "resolution" of that issue (as unsatisfactory as it was), the accused was arraigned on the amended indictment. He pleaded not guilty to the 14 counts. As I have understood it, the difference between the two indictments is that the second has been drafted in a more logical fashion - that is, in a chronological order.
I then commenced to hear the Notice of Motion, which I regarded as being an application for pre-trial orders in accordance with s 130A of the Criminal Procedure Act.
The notice of motion, in effect, seeks orders for separate and sequential trials for the counts for each discrete complainant.
The Crown opposes the order sought in the notice of motion.
The primary basis for the application for separate trials is that, in the absence of any effective tendency notice, the evidence of other complainants is irrelevant to any count referrable to a specific complainant (i.e. a cross-admissibility issue).
The Crown accepts that that submission is, in general terms, correct. However, the Crown submits that the evidence of the other complainants is admissible as tendency evidence.
This approach by the Crown raises an immediate procedural issue - and that is, there is no formal application by the Crown before the Court for an extension of time (by which expression I also mean dispensing with notice requirements) for the service of any tendency notice. Such an application should have been made by a Notice of Motion but this formal procedural step was not taken. Alternatively, the Crown could have explicitly sought leave to orally make that application at the commencement - or even during - the hearing of the accused's Notice of Motion, but that step too was not taken.
On one view, these procedural irregularities would be sufficient to determine the Notice of Motion - and for the orders sought therein to be made.
However, during the second set of oral submissions on the voir dire on 2 May 2018, counsel for the accused submitted that the Crown's submissions in opposition to the Notice of Motion could (not should) be constructively or impliedly regarded as such an oral application.
In the circumstances, I intend to treat the Crown's submissions as a constructive or implied application for an extension of time to serve the tendency notice "served" progressively on 20 and 21 March 2018.
In this context, it is appropriate to note that in relation to extensions of time generally, two broad considerations need to be satisfied: first, that there is a sufficient explanation for the delay; and (not or), it is in the interests of justice (cf Clancy v Director of Public Prosecutions [2018] NSWCA 102 at [7] per Basten JA with whom Macfarlan and Meagher JJA agreed). In my opinion, these considerations inform the discretion to "otherwise order" for the purposes of Rule 31.5, or to dispense with the notice requirements in s 100 of the Evidence Act (see also R v Harker [2004] NSWCCA 427.).
As to the first criterion, there is no explanation (yet alone a satisfactory one) for the Crown's failure to, yet again, comply with the initial service requirement or subsequently with the order made on 22 February 2018 - notwithstanding that numerous opportunities were given to the Crown during the hearing of the voir dire to provide an explanation.
That is a sufficient reason to refuse leave.
Although it is not necessary to do so, I shall also consider the second criterion.
The Crown submits that it is in the interests of justice that leave be granted because the tendency evidence sought to be adduced would be of significant probative value in the Crown case and that there is a significant public interest in this evidence being before a single jury.
The accused submits that the evidence would not be in the interests of justice in three significant respects.
First, that on a proper analysis the evidence does not have significant probative value.
Secondly, that there is a real chance that the evidence has been contaminated and that that chance is not merely speculative.
Thirdly, there has been a persistent disregard by the Crown over many years with respect to the timing of the service of tendency notices and that the interests of justice include a public interest in the rule of law, including a requirement that the Crown adheres to the rules of Court and orders made by the Court.
I further pause to observe that no question of prejudice is raised by the accused.
I can quickly deal with the first and second of the accused's submissions in this respect.
As to the first submission, by having regard to the dicta in R v Hughes [2017] HCA 8, especially at [32], [40], [60] and [61] - and the contents of the statement of each of the complainants - I'm satisfied that they do have significant probative value which is not outweighed by any relevant prejudice.
As to the second submission, although it may be accepted that, in relation to all of the complainants, one person (L.C.) has had some involvement, it could not be said, on the material before me, that that fact, in and of itself, gives rise to a real chance of concoction or contamination. Any malign or improper influence by her, on the presently available evidence, is in my view merely speculative.
The real difficulty for the Crown is in relation to the third matter raised by the accused.
It is not reasonably open to dispute, and is common knowledge, that the Crown (at least in respect of proceedings brought in the Parramatta Registry of the District Court) has for many years consistently and persistently failed to comply with the statutory requirements regarding the timely service of tendency notices.
This is a matter that I drew attention to as long ago as 2011 - see R v RJ [2011] NSWDC 158.
In this context, initially on 2 May 2018, the Crown was represented by a Crown Prosecutor who, in argument, submitted that there was no evidence before the Court to support such a finding - thereby challenging the engagement of s 144 of the Evidence Act.
Two things may be said of that particular submission.
First, the matters I drew attention to in R v RJ (including a concession by the Crown at [14]) have continued with concerning regularity in matters I have presided over in the intervening 7 years - either as a trial judge or as an acting list Judge in this registry.
Secondly, later on 2 May 2018, the Deputy Senior Crown Prosecutor appeared with that Crown Prosecutor. The Deputy Senior Crown Prosecutor tendered voir dire Exhibit 2, the contents of which render the earlier submission unhelpful. It is rejected.
In this context, it is not to the point that this accused did not comply with the discretionary pre-trial order made 19 October 2017 (nor was that relied upon by the Crown); nor is it to the point that the accused might, at an early stage, have reasonably anticipated that the Crown might seek to rely on tendency evidence.
To exclude this evidence on this occasion is not to "punish" the Crown as was submitted by the Crown Prosecutor, but rather is to uphold the rule of law which the Crown for far too long has failed to adhere to - and, in the present case at least, without any attempt to justify or explain itself. The present case is not an isolated or even an infrequent event. Indeed I feel compelled to say that the persistent failure by the Crown in this regard over many years is an affront to the administration of justice. Now that there has been a direct challenge to this practice (some may think it has been a long time in coming) the Court should not acquiesce in it.
This is no small matter. There are good reasons (if they be required) for the notice provision.
First, if complied with, it allows an accused person to properly understand the case she or he has to meet - and it may well be that, properly informed of that case, an early plea can be advanced.
Secondly, if the rule is not complied with, it can and frequently does give rise to adjournments of trials - trials which have been in the Court's list for 12 to 18 months and which may not get another hearing date for another 12 to 18 months. Such adjournments give rise to very significant costs: wasted legal fees on both sides, wasted Court resources, financial and emotional strain for complainants and accused persons, and the necessary displacement of other matters "down the track".
I therefore propose to refuse to "otherwise order" for the purposes of Part 31.5 of the Uniform Civil Procedure Rules, or to dispense with the notice requirements as per s 100 of the Evidence Act.
I make the orders (a) to (e) inclusive of the accused's Notice of Motion filed 22 March 2018.
I direct the Crown to inform the solicitor for the accused in writing by 5pm, 28 May 2018 in what order the back to back trials are to be run by the Crown.
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Decision last updated: 21 May 2018