R v DLW

Material tendered on the application

1. The Crown tendered the following material on the application: 1. Crown written submissions; 2. Tendency notice dated 8 November 2019; 3. Notice of Motion dated 12 September 2019; 4. Affidavit of Ms Thoms-Packer dated 12 September 2019 including Indictment 1.4 and 6.2, R v DLW [2019] NSWDC 305, an email dated 4 September 2019 and Indictment 7.2; 5. Crown case statement; 6. JIRT interview with BW dated 3 June 2016; 7. JIRT interview with LM dated 12 July 2005; 8. JIRT interview with AP dated 20 December 2004; 9. JIRT interview with JT dated 15 June 2011; 10. JIRT interview with KT dated 17 June 2011; 11. JIRT interview with LW dated 24 May 2002.

Allegations concerning LW (uncharged acts)

1. As at May 2002, LW (then aged 14 years) attended Hopetown school. The accused also attended Hopetown school and was a friend of LW. As at May 2002, the accused was also 14 years old. LW alleges that there was an occasion in May 2002 when he was at school. He was near the swimming pool and the accused told him to lie down which he did. The accused then pulled LW's pants down and, amongst other things, was "playing" with his penis. The accused did not say anything to LW whilst this was happening or after it had stopped. LW participated in a record of interview with police on 24 May 2002 (then aged 14 years).

Allegations concerning LM (Counts 1, 2 and 3)

1. Between 4 February 2002 and 10 June 2003, LM (born in 1991) was ten 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. LM alleged that between 4 February 2002 and 10 June 2003 there were four occasions of anal intercourse with the accused as follows: 1. When LM was ten years old there was an occasion LM and DW broke into a neighbour's shed and stole bullets. The accused locked LM in the 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 ten minutes. The conduct ended when DW knocked on the door. DW's mother asked LM whether anything had happened. LM was too scared to say anything because the accused was in the background, running his finger along his neck "more or less to say if I say anything he's going to slit my throat" (there is no count on the indictment in relation to this conduct). 2. LM went on a holiday to Gloucester with DW, the accused and the accused's father in 2002/2003. LM was ten or 11 years old and the accused was 15 or 16 years old. During a spearfishing trip at the 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 better lie still this time or this time is it". The accused then had penile anal intercourse with LM (count 1). 3. 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 dob you'll have dirt boulders hitting your head". The accused threatened to "cave" LM's "head in" if he did not lie still. The accused then had penile anal intercourse with LM (count 2). 4. 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 the LM (count 3).
2. LM participated in a record of interview with police on 12 July 2005 (then aged 14 years).

Allegations concerning AP (Count 4)

1. Between 12 November 2004 and 16 December 2004, AP (born in 1992) was 12 years old. The accused was 16 years old. The accused was a cousin of AP's mother.
2. AP alleged that on an occasion between 12 November 2004 and 16 December 2004, the accused came to AP's house after school. Whilst they were together in the lounge room, AP alleged that the accused put him up against the lounge and told him to take his clothes off. The accused pulled down AP's shorts before taking his own clothes off. AP was then lying on his back on the couch and the accused was standing, grabbing him by the legs. The accused tried to get AP to stand. The accused held AP's chest so that his back was facing the accused's chest. The accused put his penis in AP's anus (count 4).
3. AP fell and was facing down on the ground and crying. The accused was on top of AP with his penis in AP's anus and AP told the accused to get off him. AP described that he was struggling with the accused and crying. The penetration lasted for around a minute or two and ended when the accused ejaculated. AP alleged that before the accused left his house he said to AP, "Call the police and you're dead".
4. AP participated in a record of interview with police on 20 December 2004 (then aged 12 years).

Allegations concerning BW (Counts 5, 6 and 7)

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.
2. 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. 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 pushed 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 5).
3. The accused then pulled BW onto his knees and forced his penis into BW's mouth (count 6). Before BW left the bedroom the accused also performed fellatio on BW (count 7). 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".
4. 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).

Allegations concerning KT (uncharged acts)

1. On 4 June 2011, KT (born 1997) was 14 years old. The accused was 23 years old. On 4 June 2011, KT was at a house in Toukley with two adults, Lucas Greenham (20 years) and "Terry" (approximately 31 years). They were all smoking marijuana and KT described himself as "a little bit high".
2. At some stage the accused came over to the house. Sometime after the accused arrived at the house, KT went upstairs and laid down. KT alleged that the accused came into the room where he was lying down and said, "Do you want to have sex with me?" KT said "no". The accused then said in a "really angry voice", "come on, just do it". KT went along with it because he was scared.
3. KT alleges that the accused pulled his pants down and had penile anal intercourse with him. KT was scared and crying. The incident lasted for about 15 minutes and then the accused left the room. The accused did not say anything during the intercourse or before he left the room.
4. KT participated in records of interview with the police on 15 and 17 June 2011 (then aged 14 years).

The relevant law - tendency evidence

1. Section 97(1) of the Evidence Act provides as follows: "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) of the Evidence Act provides as follows: "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 outweighs the danger of unfair prejudice to the defendant."

The tendency notice

1. Mr O'Sullivan who appeared on behalf of the accused conceded that reasonable notice in writing had been provided to the accused of the Crown's intention to adduce the tendency evidence (see s 97(1)(a), Evidence Act). The tendency notice identifies that the person whose tendency is the subject of the evidence sought to be adduced is the accused. The tendency sought to be proved by the Crown is particularised as follows: "1. To have a particular state of mind namely a sexual interest in young males 14 years and under to whom he gains access and 2. To act on that state of mind namely to engage in sexual activity including touching the penis of young males and forcing penile/anal intercourse with young males 14 years old and under by 3. Using violence and physical acts during the sexual activity with the young males and, 4. Threatening the young males with physical violence or their lives if they disclose the offences".
2. The Crown contends that the evidence in respect of each of LM (counts 1 to 3), AP (count 4) and BW (counts 5 to 7) is cross admissible as tendency evidence. The Crown further contends that the evidence of LW (uncharged acts) and KT (uncharged acts) is admissible as tendency evidence in relation to counts 1 to 7 on the indictment.
3. In relation to LM (counts 1 to 3) and BW (counts 5 to 7), the Crown also seeks to rely on the evidence of each individual count as tendency evidence in relation to all other counts concerning the same complainant.
4. Mr O'Sullivan, on behalf of the accused, has previously conceded that the evidence of each of LM and BW concerning charge acts relating to themselves is admissible as tendency evidence in relation to all other counts concerning the same complainant. The fact in issue in the trial is whether the accused committed the offences alleged against him in the indictment.

Section 97 - significant probative value

1. Probative value is defined in the dictionary of the Evidence Act as "the extent to which the evidence could rationally effect the assessment of the probability of existence of a fact in issue".
2. In R v LN; R v AW (No. 1) [2017] NSWSC 119, Johnson J made the following observations in relation to "significant probative value" in the context of s 97, Evidence Act at [85] - [86]: "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]."
3. 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) 257 CLR 300 at 315 [52].
4. In R v Ford (2009) 273 ALR 286 Campbell J (Howie and Rotham JJ agreeing) stated as follows at [485]: "All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged".
5. In Hughes v R [2017] HCA 20, Kiefel CJ, Bell, Keane and Edelman JJ observed as follows at [41]: "The assessment of whether evidence has significant probative value in relation to each count, involves consideration of two inter-related but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes it more likely the facts making up the charged offence." Their Honours continued at [41]: "In summary, there is likely to be a high degree of probative value where (i) the evidence by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports proof of the facts that make up the offence charged".

Cross admissibility of charged acts and admissibility of uncharged acts (multiple complainants)

1. In relation to the question of cross admissibility of the evidence of each complainant concerning the charged acts and the admissibility of evidence of LW and KT concerning uncharged acts, the relevant principles were recently clarified by the High Court in R v Bauer (a pseudonym) [2018] HCA 40 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."

Submissions of the parties

1. The Crown submitted that the evidence of each of LM, AP and BW in relation to the charge acts, and KT and LW in relation to the uncharged acts, supports the tendency that the accused had a sexual interest in young males under the age of 14 years old to whom he could gain access. It was further submitted that it also supports the tendency of the accused to act on that state of mind by engaging in sexual activity including penile anal intercourse with young males under the age of 14 years by using violence to gain access to the males and using violence and physical acts during the sexual activity with the young males and threatening young males with physical violence or their lives if they disclose the offences.
2. Further, it was submitted that the tendency makes it more likely that the accused engaged in sexual activity with LM, AP and BW by having penile and anal intercourse with them as well as engaging in sexual behaviour that involved him performing and receiving fellatio. The Crown submitted the sexual interest in young boys and the willingness to act on the sexual interest began in 2002 when the accused was 14 years old and continued until 2011 when the accused was 23 years old (relying upon the evidence of LW, LM, AP, BW and KT).
3. In relation to the temporal gap (I infer between counts 4 and 5, namely between 4 years eight months and five years eight months), the Crown submitted it is of less significance because of the number of complainants alleging sexual misconduct throughout the time period between 2002 and 2011. It was submitted that the evidence demonstrates a continued sexual interest of the accused between the ages of 14 and 23 years.
4. The Crown submitted that the present matter was distinguishable from McPhillamy v R [2018] HCA 52 for the following reasons: 1. The time lapsed is 2002 to 2011 so at the highest nine years rather than 10 years; 2. The offending is towards five young boys who are friends of people known to the accused and the relationship between the accused and complainants is similar; 3. The conduct of the accused is the same, penile/anal intercourse with respect to four of the complainants. LW alleges the accused touched him on his penis; 4. The use of violence is present in the sexual acts for both complainants in terms of gaining access to the young males; 5. The use of violence during the sexual acts; 6. The use of violent threats to their lives if they told anyone.
5. The Crown relied on BC v R [2019] NSWCCA 111 at [81], as support for the proposition that the presence of linking features can establish significant probative value.
6. Having regard to the principles enunciated in McPhillamy v R, the Crown conceded that the time lapsed may weaken the probative value of the tendency evidence. However, the Crown submitted that in circumstances where there is evidence available from five complainants with a high degree of similarity, including it was submitted the same type of intercourse, that the probative value was significant notwithstanding the time lapse.
7. It was further submitted that the tendency evidence of each complainant is not assessed in isolation, it is considered with all other evidence to determine whether it has significant probative value (including other alleged tendency evidence). The Crown relied upon BC v R at [75].
8. Further, the Crown submitted that there does not have to be striking similarity between the tendency evidence or a tendency to offend in a particular manner (relying on Hughes v R [2017] HCA 20).
9. Mr O'Sullivan submitted on behalf of the accused that the issue of the time gap remains as it was identified in my earlier judgment (R v DLW [2019] NSWDC 305) in circumstances where the time gap is some four years eight months minimum and is inexplicable. Further, it was submitted that there is insufficient nexus (temporal or logical) between counts 1 to 4 and counts 5 to 7 to elevate the tendency evidence to significant probative value.

Is there a link or common feature between the offending alleged by LW, LM, AP, BW and KT?

1. I note at the outset that Mr O'Sullivan, on behalf of the accused, had previously conceded that there was a sufficient link or common features between the alleged offending concerning LM and BW.
2. Having regard to the allegations made by AP namely that the accused forcefully had penile/anal intercourse with him when he was 12 years old and then threatened him with violence if he disclosed the offending, I am also satisfied there is a sufficient common link or common features between this offending and the allegations made by LM and BW.
3. In relation to the alleged uncharged acts outlined by LW, I am not satisfied that there is a sufficient link or sufficient common features to or with the allegations made by LM, AP and BW. The sexual act alleged by LW occurred in circumstances where both LW and the accused were students at the same school. The alleged conduct occurred at school. The sexual act was fondling of the penis by the accused when both LW and the accused were 14 years old. There is no allegation that there was any violence used against LW or that LW was threatened by the accused should LW disclose the conduct. To this extent the evidence of LW does not support the asserted tendency that the Crown seeks to establish. In such circumstances, I am not satisfied that the evidence of LW has significant probative value on the basis of tendency reasoning. Accordingly, I decline to admit the evidence of LW in relation to counts 1 to 7 on the indictment as tendency evidence.
4. In relation to the alleged uncharged acts outlined by KT, I am also not satisfied that there is a sufficient link or sufficient common features to or with the allegations made by LM, AP and BW. The sexual act alleged is penile/anal intercourse with KT (then aged 14 years) when the accused was 23 years old. There is no allegation of physical violence used against KT or any allegation that KT was threatened by the accused should the conduct be disclosed. To this extent, the proposed evidence does not support the asserted tendency that the Crown seeks to establish. I consider the absence of such features reduces the probative value of the evidence for the purposes of tendency reasoning. In such circumstances, I am not satisfied that the evidence of KT has significant probative value. Accordingly, I decline to admit the evidence of KT in relation to the counts 1 to 7 on the indictment.

The significance of the time gap in assessing the significant probative value of the evidence of LM, AP and BW on the basis of cross-admissibility as tendency evidence

1. It is alleged counts 1 to 4 concerning LM and AP occurred between 2002 and 2004 when the accused was a child, specifically he was between 15 and 16 years old during the time period alleged in counts 1 to 3 and 16 years old during the time period alleged in count 4. It is alleged counts 5 to 7 concerning BW occurred in 2009, 2010 when the accused was 21 to 22 years old. The time gap between the allegations in counts 4 and count 5 is a minimum of four years eight months and a maximum of five years eight months.
2. Mr O'Sullivan submitted on behalf of the accused that it cannot be assumed that the accused has retained a tendency for some four years and eight months during the period between counts 4 and 5. It was further submitted that this was particularly so because counts 1 to 4 allege sexual offending when the accused was a child and the temporal gap is so significant that it could not be said that the alleged acts regarding BW, when the accused was an adult, were a manifestation of a tendency that the accused had at an earlier time when he was a child, as there is no evidence the accused manifested the tendency during the temporal gap (relying on McPhillamy v R at [27]).
3. It was submitted on behalf of the accused that the purported tendency amounts to no more than "insinuation" (relying on McPhillamy v R at [32]) and is not some manifestation of tendency.
4. The Crown relied upon McPhillamy v R where the Court emphasised that when assessing the strength of probative value of tendency evidence, the totality of the evidence must be taken into account.
5. The facts of McPhillamy v R were succinctly summarised in BC v R at [77] - [78] as follows: "McPhillamy pleaded not guilty to sexual offences arising from two incidents relating to "A", which were alleged to have occurred in the public toilets of a cathedral between 1 November 1995 and 31 March 1996. "A" was an 11-year-old altar boy under the supervision of McPhillamy, an acolyte. The Crown sought to lead tendency evidence from "B" and "C" of incidents dating from 1985 when each had been a boarder aged about 13, and McPhillamy had been an assistant housemaster. "B" and "C" both gave evidence that they had gone to McPhillamy's bedroom when feeling homesick and upset, and were sexually assaulted by him in the course of those visits. "B" also gave evidence that on a separate occasion McPhillamy approached him while he was standing naked by his locker after showering. Overturning the majority decision of this Court, the High Court held that the evidence of "B" and "C" was not admissible as tendency evidence for the charges relating to "A". The Court concluded that "B"'s and "C"'s evidence did not possess significant probative value for the purposes of the threshold test for admissibility in s 97(1)(b). The essence of the reasoning in support of that conclusion is recorded in [30]-[32] of the joint judgment: "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. Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over 'A', an altar boy, when the two were at the Cathedral for services in 1995‑1996. The evidence does not suggest that 'A' was vulnerable in the way that 'B' and 'C' were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with 'A''s account that the appellant followed him into a public toilet and molested him. '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.""
6. In BC v R, the appellant had been convicted of 20 counts of child sexual assault. The counts were alleged to have occurred over 17 years between 1994 and 2011 and involved sexual assaults against four different complainants. The appellant was aged between 11 to 28 years at the time of the alleged conduct.
7. In BC v R, the appellant relied upon McPhillamy v R during the appeal. In respect of the stepmother, the Court concluded as follows at [79]: "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.
8. I note that in BC v R whilst there was a time gap of four years between counts 18 and 19, such time gap was considered in the context of the totality of the evidence which demonstrated regular offending over a significant period of time."
9. In the present matter there had not been a manifestation of the asserted tendency to act for the period between counts 4 and count 5, namely a period of between four years and eight months and five years and eight months. Whilst the time gap is not as lengthy as in McPhillamy v R, I am of the view that it has the same impact on 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 5, 6 and 7) is weak. As noted in my previous ruling, 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 and 4 in 2002 to 2004 and was 21 to 22 years old at the time of the commission of the offences alleged in counts 5, 6 and 7. 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).
10. Similarly, I consider the tendency manifested as an adult (counts 5, 6 and 7 concerning BW) some four years and eight months to five years and eight months after the alleged commission of counts 1 to 4 is an even weaker foundation from which to infer that such tendency was possessed years earlier as a child.
11. Similarly with my reasoning in my earlier judgment, I do not accept the Crown 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 relied upon 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.
12. In those circumstances, I am not satisfied that the evidence of LM (counts 1 to 3) and AP (count 4) has significant probative value with respect to counts 5 to 7 concerning BW. Accordingly, I decline to admit the evidence of LM and AP as tendency evidence.
13. Further, I am not satisfied that the evidence of BW (counts 5 to 7) has significant probative value with respect to counts 1, 2, 3 concerning LM and count 4 concerning AP. I decline to admit the evidence of BW as tendency evidence.
14. My formal orders in relation to the matter are as follows: 1. I decline the order sought in the notice of motion that leave be granted to present an amended indictment.
15. I note that during the hearing of the notice of motion, I enquired of the Crown whether any further pre-trial ruling would be sought in relation to the presentment of two separate indictments, namely for counts 1 to 4 (LM and AP) and counts 5 to 7 (BW). The Court was advised that no such ruling was sought.

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: 14 September 2020