R v DLW

[2019] NSWDC 940

District Court of NSW|2019-06-28

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Source facts

Court

District Court of NSW

Decision date

2019-06-28

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Judgment

DLW, born 3 February 1998, was to appear before the Gosford District Court for trial on 1 July 2019.
On 28 June 2019, the Court heard pre-trial legal argument in relation to a Crown application to adduce tendency evidence pursuant to s 97(1), Evidence Act 1995 (NSW). Mr O'Sullivan who appeared on behalf of the accused opposed the application.
The accused was arraigned on an indictment containing six counts. 1. Counts 1 to 3 were charges of aggravated sexual assault under s 61(1), Crimes Act 1900 (NSW) relating to the complainant LM (ten or 11 years). The alleged offending occurred between 4 February 2002 and 10 June 2003 when the accused was 14 to 15 years old. 2. Counts 4 to 6 were charges of sexual intercourse with a child under ten years, s 66A(1) Crimes Act relating to the complainant BW (seven years). The alleged offending occurred between 23 July 2009 and 22 July 2010 when the accused was 21 to 22 years old.
The accused pleaded not guilty to all counts.
On 1 July 2019, the Crown application to adduce tendency evidence relating to cross-admissibility between the complainants was declined (see R v DLW [2019] NSWDC 305).
On 22 November 2019, the matter was listed for further pre-trial legal argument in circumstances where the Crown had filed a Notice of Motion seeking leave to present an amended indictment. The proposed amended indictment consisted of seven counts, being the original six counts concerning LM (counts 1 to 3) and BW (counts 5 to 7) together with a further ex officio count concerning allegations made by AP (count 4).
Leave was sought by the Crown to file the amended indictment on the basis that the Crown also made an application to adduce the evidence of LM, AP and BW as tendency evidence. The Crown also made an application to adduce the evidence of two further complainants, KT and LW, as tendency evidence (uncharged acts).
At the commencement of the hearing of the pre-trial legal argument, the accused was arraigned on an ex officio indictment as follows: "Between 12 November 2004 and 16 December 2004 at Budgewoi in the State of New South Wales did have sexual intercourse with AP without his consent, knowing that he was not consenting, in circumstances of aggravation, namely that at the time of offence AP was a person aged under the age of 16 years, namely 12 years (s 61J(1) Crimes Act)"

[4]

Allegations concerning LM (Counts 1, 2 and 3)

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).
LM participated in a record of interview with police on 12 July 2005 (then aged 14 years).

[10]

Section 97 - significant probative value

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".
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]."
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].
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".
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".

[12]

Submissions of the parties

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.
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).
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.
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.
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.
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.
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].
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).
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.

[13]

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

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.
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.
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.
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.

[14]

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

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.
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]).
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.
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.
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.""
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.
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.
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."
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).
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.
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.
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.
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.
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.
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.

R v DLW

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