R v DLW

Material tendered on the application

• Voir Dire Exhibit A1 - Crown case statement;
• Voir Dire Exhibit A2 - Amended tendency notice dated 25 June 2019;
• Voir Dire Exhibit A3 - Record of interview conducted with BW on 3 June 2016;
• Voir Dire Exhibit A4 - Record of interview conducted with LM on 12 June 2005 and statement of LM dated 20 November 2018;
• Voir Dire Exhibit A5 - Crown written submissions; and
• Voir Dire Exhibit B - Defence written submissions.

The Crown case at trial - allegations concerning LM (counts 1, 2, 3)

1. Between 4 February 2002 and 10 June 2003, LM (born in 1991) was 10 or 11 years old. The accused was 15 to 16 years old. LM lived in Mannering Park with his family. He was school friends with the accused's brother, DW, who was two years older than LM. The accused was DW's older brother.
2. LM alleged that between 4 February 2002 and 10 June 2003 there were four occasions of anal intercourse with the accused as follows:
3. On an occasion LM and DW broke into a neighbour's shed and stole bullets. The accused locked LM in a garage, forced him to the ground and hit him three or four times in the face and had penile/anal intercourse with LM for about 10 minutes. The conduct ended when DW knocked on the door. DW's mother asked LM whether anything had happened. LM said, "No", because the accused was in the background running his finger along his neck, "more or less to say if I said anything he's going to slit my throat." (No count on the indictment in relation to this conduct).
4. LM went on a holiday to Gloucester with DW, the accused and the accused's father in 2002-2003. LM was 10 or 11 years old, and the accused was 15 or 16 years old. During a spearfishing trip at a time when DW had gone to buy some ice for an Esky, the accused chased LM into the bushes and jumped on him. The accused pulled LM's pants down and said, "You'd better lie still this time or this time is it." The accused then had penile/anal intercourse with LM (count 1).
5. During the same spearfishing trip and at a time when DW had gone to buy hot chips, the accused approached LM and told him to pull his pants down. LM refused and the accused pushed LM down a hill. The accused then said, "If you, if you dob you'll have dirt boulders hitting your head." The accused threatened to "cave" LM's "head in" if he did not lay still. The accused then had penile/anal intercourse with LM (count 2).
6. About four days after returning from the holiday, there was an occasion when LM was walking home. He saw the accused and ran behind a toilet block. He then ran to a nearby yard before returning to the vicinity of the toilet block. The accused then came up behind LM and said, "You move this time or youse hit me or do anything I'll kill you right now." The accused gestured across his throat with his finger. The accused then had penile/anal intercourse with LM (count 3).
7. LM participated in a record of interview with police on 12 July 2005 (then aged 14 years).

Allegations concerning BW (counts 4, 5, 6)

1. Between 23 July 2009 and 22 July 2010, BW (born in 2002) was seven years old. The accused was 21 to 22 years old. BW's mother was friends with the accused's father, GS. BW's mother was assisting GS as his wife had recently died. On one occasion in 2009, BW's mother took BW to a party at GS's house. The party was to celebrate the birthday of GS's son DW. The accused was present at the party.
2. At some stage whilst at the party, BW went into the house to get a drink. Whilst in the kitchen it is alleged the accused grabbed BW by the neck and took him to a bedroom. BW attempted to fight off the accused but without success. Once in the bedroom, the accused forced BW onto the floor. BW hit his head on the floor as he fell. The accused then removed BW's pants and had penile/anal intercourse with him (count 4). The accused then pulled BW onto his knees and forced his penis into BW's mouth (count 5). Before BW left the bedroom, the accused also performed fellatio on BW (count 6). BW was telling him to stop and kicking him. At some stage people began knocking on the door and the accused stopped. The accused said to BW, "Keep it to yourself or I'll kill you."
3. In 2016, BW disclosed the alleged conduct to his father and stepmother when he was 13 years old. BW participated in a record of interview with the police on 3 June 2016 (then aged 13 years).

The relevant law - tendency evidence

1. Section 97(1), Evidence Act provides as follows: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
2. Section 101(2), Evidence Act provides as follows: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution … (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

The tendency notice (Voir Dire Exhibit A2)

1. Mr O'Sullivan conceded on behalf of the accused that reasonable notice in writing had been provided to the accused of the Crown's intention to adduce the tendency evidence.
2. The tendency notice identifies the tendency sought to be established by the Crown as follows:
3. "To have a particular state of mind, namely a sexual interest in young males under the age of 12 years to whom he gains access and to act on that state of mind, namely to engage in sexual activity including penile/anal intercourse with young males under the age of 12 years by using violence to gain access to the young males and using violence and physical acts during the sexual activity with the young males and threatening the young males with physical violence or their lives if they disclose the offences."
4. The Crown contends that the evidence in respect of each complainant on the indictment is cross-admissible as tendency evidence.
5. Whilst Mr O'Sullivan on behalf of the accused conceded there is a link or common features between the alleged offending concerning each complainant, he did not concede that significant probative value had been established. Specifically, it was submitted the temporal gap between the alleged offending deprived the proposed tendency evidence of significant probative value (see generally McPhillamy v R [2018] HCA 52 (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ)).
6. Should the Court find that the evidence has significant probative value, it was further submitted on behalf of the accused that the evidence is unfairly prejudicial (s 101(2), Evidence Act).
7. Further, in relation to each individual complainant the Crown contended the evidence is admissible as tendency evidence in relation to the counts concerning that particular complainant.
8. The fact in issue in the trial is whether the accused committed the offences alleged against him on indictment.
9. Mr O'Sullivan on behalf of the accused conceded that the tendency evidence is admissible pertaining to individual complainants.

Section 97 - "significant probative value"

1. "Probative value" is defined in the dictionary to the Evidence Act as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
2. In R v LN; R v AW (No. 1) [2017] NSWSC 119, Johnson J observed as follows at [85]: "With respect to the concept of "significant probative value", the word "significant" means important or of consequence - it requires more than mere relevance: R v Lockyer (1996) 89 A Crim R 457; Hughes v R [2015] NSWCCA 330 at [163]. The evidence must be influential in the context of fact finding: IMM v The Queen at 314 [46]. As the terms of s.97(1)(b) make clear, an assessment of whether the evidence has "significant probative value" is not confined to the evidence itself, but is to be made having regard to all the evidence sought to be adduced by the tendering party (the Crown): BC v R [2015] NSWCCA 327 at [82]-[83]. What must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact - its capacity to contribute to that resolution: DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 at 774 [72]; BC v R at [83]. Further at [83]: "In considering the probative value of evidence under s.97(1)(b), an assumption of the jury's acceptance of the evidence must be made. No question of the credibility or reliability of the evidence can arise: IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315 [52]."
3. Recently, in R v Bauer (a Pseudonym) [2018] HCA 40, the High Court clarified the approach to be taken in relation to tendency evidence sought to be adduced in criminal trials.

Admissibility of charged acts from a single complainant

1. In relation to the question of admissibility of charged acts of a single complainant, the Court in R v Bauer stated as follows at [49]:
2. "As the trial judge in substance observed, it has long been the law that a complainant's evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts. In HML, Kiefel J (as her Honour then was) explained its significance thus:
3. '"[R]elationship evidence" refers to all the conduct of a sexual kind that has taken place between the accused and the complainant. It encompasses sexual conduct which is an offence, often referred to as 'uncharged acts', and misconduct which may not be an offence. …'" (footnotes deleted).
4. As previously noted it has been conceded by Mr O'Sullivan on behalf of the accused that the evidence of each complainant would be admissible as tendency evidence in relation to the counts on the indictment concerning that particular complainant.
5. Having regard to the available evidence, I am satisfied that the evidence in respect of each individual complainant has significant probative value with respect to the other counts concerning that complainant. Further, I am not satisfied the probative value is substantially outweighed by any prejudicial effect that evidence may have on the accused.
6. Accordingly, the evidence of each complainant, LM and BW, is admissible as tendency evidence with respect to the other counts concerning each individual complainant.

Cross admissibility of charged acts (multiple complainants)

1. In relation to the question of cross-admissibility of each complainant's evidence in relation to counts concerning the other complainant, the relevant principles were recently clarified by the High Court in R v Bauer at [58] as follows: "In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true." (footnotes deleted).

Submissions of the parties

1. The Crown acknowledged that the relevant principles in relation to consideration of a temporal gap were identified in McPhillamy v R. The Crown sought to distinguish McPhillamy v R from the current matter on the following grounds:
2. "The time lapsed is at the highest seven years and at the lowest six years rather than 10 years. The offending is towards two young boys who are friends of people known to the accused and the relationship between the accused and the complainants is similar. The conduct of the accused is the same, penile/anal intercourse. The use of violence is present in the sexual acts for both complainants in terms of gaining access to the young males; the use of violence during the sexual acts; the use of violent threats to their lives if they told anyone."
3. Whilst the Crown conceded that the time lapse may weaken the probative value of tendency evidence, here the Crown relied upon the fact that the allegations involved a "manifestation of behaviour with a high degree of similarity including the same type of anal/penile intercourse", which it was submitted established significant probative value despite the time lapse (see Voir Dire Exhibit A5 at [58]).
4. The Crown also sought to rely upon BC v R [2019] NSWCCA 111 to support the proposition that linking features can be sufficient to satisfy the test of significant probative value.
5. Mr O'Sullivan submitted on behalf of the accused that because of the time gap between the alleged offending concerning LM and BW that the evidence lacks significant probative value. Relying upon the observations of the High Court in McPhillamy v R at [32], it was submitted that the evidence rose no higher than insinuation, that because the accused had offended previously (noting that here, unlike McPhillamy, all conduct was disputed), that he had offended again despite there being no manifestation of the conduct in the intervening period.
6. To the extent that the Crown sought to rely upon BC v R, Mr O'Sullivan submitted that in circumstances where no relevant time gap existed in that matter, it did not support the Crown's principal submission that the proposed tendency evidence had significant probative value.

Consideration

1. In McPhillamy v R, the temporal gap between the offending was a decade. It was accepted by the High Court that an accused's sexual interest in young teenage boys may meet the "basal test of relevance" (s 55, Evidence Act). However, the Court concluded at [27] as follows: "…it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value."
2. In McPhillamy v R, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the relevant alleged offending in respect of which the appellant had stood trial.
3. The Court at [30] stated: "…In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak."
4. The Court continued at [32]: "'B''s and 'C''s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. Proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against 'A' to a significant extent. It rose no higher in effect than to insinuate that, because the appellant had sexually offended against 'B' and 'C' ten years before, in different circumstances, and without any evidence other than 'A''s allegations that he had offended again, he was the kind of person who was more likely to have committed the offences that 'A' alleged. The tendency evidence did not meet the threshold requirement of s 97(1)(b) of the Evidence Act." (footnotes deleted).
5. In the matter before me, the Crown relies upon the accused's tendency to have a particular state of mind, namely a sexual interest in young males under the age of 12 years to whom he gains access and his tendency to act on that state of mind by: 1. Using violence to gain access to the young males; 2. Using violence and physical acts during the sexual activity with the young males; and 3. Threatening the young males with physical violence or their lives if they disclosed the offences.
6. Here, there had been no manifestation of the asserted tendency to act for the period between counts 1, 2, 3 and counts 4, 5 6, namely a period of between six years and one month and eight years and five months. Whilst the time gap is not as lengthy as in McPhillamy v R, I am satisfied that it has the same impact upon the inference that can be drawn from such evidence, namely that the inference that the accused still possessed the tendency in 2009-2010 at the time of the commission of the alleged offences against BW (counts 4, 5 and 6) is weak.
7. This is particularly so because the accused was a child aged 15 to 16 years at the time of the commission of the offences alleged in counts 1, 2, 3 in 2002-2003 and was 21 to 22 years old at the time of the commission of the offences alleged in counts 4, 5 and 6. In my view, it is relevant to take into account in assessing the probative value of the evidence that a tendency manifested as a child may be an even weaker foundation from which to infer that such tendency was possessed as an adult in circumstances where ordinarily, conduct committed as a child occurs at a time of immaturity (both sexual and emotional).
8. Similarly, I consider a tendency manifested as an adult (counts 4, 5, 6) some six years one month to eight years five months after the alleged commission of counts 1, 2 and 3 is an even weaker foundation from which to infer that such tendency was possessed years earlier as a child.
9. I do not accept the Crown's submission that any reduction in probative value because of the temporal gap is overcome by similarities with respect to the offending. In my view, the similarities particularised by the Crown do not increase the probative value to any significant degree because of the generality of such tendencies to act in a particular way.
10. Further, I am satisfied that BC v R is distinguishable from the matter before me. In BC v R, the Court (Leeming JA, Ierace J and Hidden AJ), at [79] stated as follows: "We accept the Crown's submission that McPhillamy is distinguishable from the present case. The principal basis for this is the significant time difference, of some 10 years, between the alleged incidents in McPhillamy and the materially different circumstances of the charged conduct compared with that which was the subject of the tendency evidence. No such time gap existed in the present case, where the applicant is accused of having committed numerous and regular assaults over the course of some 16 years following substantially the same pattern."
11. Accordingly, I am not satisfied that the evidence of LM has significant probative value with respect to counts 4, 5 and 6 concerning BW.
12. Further, I am not satisfied that the evidence of BW has significant probative value with respect to counts 1, 2, 3 concerning LM.
13. Accordingly, my formal orders are as follows: 1. I decline to admit the evidence of LM as tendency evidence with respect to counts 4, 5 and 6. 2. I decline to admit the evidence of BW as tendency evidence with respect to counts 1, 2 and 3. 3. I admit the evidence of LM as tendency evidence in relation to counts 1, 2 and 3. 4. I admit the evidence of BW as tendency evidence in relation to counts 4, 5 and 6. 5. I order that there be separate trials in relation to counts 1, 2, 3 (LM) and counts 4, 5, 6 (BW).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2020