Yesterday, the trial of this matter commenced, but after the jury was empanelled, it was sent away so that I could deal with an application brought by the Crown to dispense with the requirement under s 97(1)(a) of the Evidence Act 1995 (NSW) ('Evidence Act') to serve a tendency notice. The Crown brought that application under s 100(1) of the Evidence Act. No advance ruling was sought from me as to whether the proposed tendency evidence was otherwise inadmissible under s 97(1)(b), having regard to s 97A(2) of the Evidence Act; or any other basis.
The accused is being tried on indictment of five charges (the second being an alternative to the first) relating to sexual offences against the complainant. The offences were alleged to have occurred between 20 April 2020 and 27 August 2022 for the first three (when the complainant was aged between 5 and 7) with a slightly narrower date range (1 August 2022 to 27 August 2022) for charges 4 and 5 (when the complainant was 7 years of age).
The accused is the complainant's biological uncle.
The following procedural sequencing was set out in the Crown's submissions on its application (MFI 1) which Counsel for the accused did not dispute.
The accused was arraigned on 22 June 2023 on which occasion the trial date of 11 June 2024 was set.
The complainant gave her pre-recorded evidence on 26 March 2024. On that occasion she disclosed a further alleged offence committed by the accused.
That disclosure, the Crown says, resulted in the adjournment of a readiness hearing that had been scheduled for 4 April 2024, so that the Crown could consider whether to institute an ex-officio charge. The readiness hearing was re-scheduled for 9 May 2024. On that date, however, the readiness hearing was adjourned by consent for another week, to 16 May 2024.
On 16 May 2024, the trial date was confirmed. On this date, the Crown served on the accused's legal representatives a tendency notice.
R v NB [2024] NSWDC 230 | Case summary | Zoe
The tendencies particularised in the notice were:
1. for the accused to have a particular state of mind, namely, a sexual interest in the complainant; and
2. for the accused to act in a particular way, namely, to intentionally touch her genitalia with his hand or penis and to commit cunnilingus upon her.
The Crown accepts that in accordance with the Court's Practice Note 18, sub-paragraph 19(g), the tendency notice should have been served no later than 22 February 2024.
On the application, Mr Crown accepted that, with reference to the date of the readiness hearing, there was no evidence before the Court to explain the delay in service of a tendency notice.
[2]
The Crown's Submissions
The Crown referred the Court to a decision of the Court of Criminal Appeal, being R v AC [2018] NSWCCA 130 ('AC') in support of its application under s 100(1). In that decision, the Court had determined that it was an error to regard the absence of explanation by the Crown for delay in service of such a notice under this statutory provision as a mandatory or determinative consideration. On the other hand, the Court determined that the matters in s 192(2) of the Evidence Act were mandatory considerations.
In oral argument, Mr Crown said it was not simply the case that the Crown was relying upon the alleged conduct sustaining each individual count (ie. 'charged conduct') that the Crown relied upon to assert tendencies. A reference was made, somewhat obliquely, to the complainant saying that the conduct giving rise to the separate charges had been perpetrated against her many times: the charges only reflected discrete incidents. To that extent the Crown would want to refer to that rather generalised evidence.
With reference to s 192(2), the Crown submitted that the evidence had significant probative value and so was important (s 192(2)(c)). The Crown indicated that apart from the complainant's evidence, the Crown would rely upon evidence of what might be called quasi-complaint: the circumstance that the complainant's report of the accused's conduct came out rather accidentally, when she had said something things which, for someone as young as she was, alarmed the school principal. The Crown referred to part of the reasoning in AC (at [30]-[31]) which emphasised that it was not only the accused's interests that needed to be considered, but also the interests of the community generally and the complainant. That matter could be said to be subsumed within s 192(d). As to other matters in s 192(2), adducing the evidence would neither lengthen nor shorten the hearing (s 192(2)(a)); the Crown would not be seeking an adjournment (s 192(2)(e)). I allowed Mr Crown the opportunity to make submissions in reply about s 192(2) to the extent that they were raised by Counsel for the accused in her submissions.
[3]
The Accused's submissions
Counsel for the accused relied upon s 192(2)(b) and simply submitted that the Crown's non-compliance with the Court's Practice Note generated 'unfairness' for the Accused. She emphasised that the accused, who has a hearing disability, relies upon a special (AUSLAN) interpreter so that there are unusual difficulties for someone in his position to deal with unexpected procedural developments, exemplified by receiving late notice from the Crown that it intends to rely upon tendency evidence.
When pressed, however, Counsel acknowledged, however, that her client had received fair notice of the charged events to the extent that the accused had reasonable opportunity to provide instructions about those events. She frankly acknowledged that the issue really boiled down to whether the Crown could rely upon a particular legal argument, or I interpolate more precisely, whether the Crown could use evidence that will be adduced, about which notice has been given, in a particular way; i.e. to establish tendencies in the accused.
Counsel for the accused referred the Court to the decision R v RJ [2011] NSWDC 158, although did not elaborate in her oral argument how the decision assisted the accused.
Beyond her submission about unfairness, the accused's Counsel did not cite other matters in s 192(2) in resisting the Crown's application.
[4]
Consideration
In AC the Court of Criminal Appeal (at [23]) reaffirmed two purposes of the notice requirement: the first was to give the person against whom the evidence was to be adduced a reasonable opportunity to respond to the proposed evidence, and its implications for the conduct of the proceeding. The second was to direct attention to the tendency(ies) sought to be proved and the circumstances and conduct relied on to establish it or them. That facilitates (where appropriate or necessary) the Court's evaluation of its probative value and, in a criminal proceeding, whether its probative value outweighs any prejudicial effect.
The Court of Criminal Appeal in AC followed observations of Howie J made in a differently constituted Court of Criminal Appeal in R v Harker [2004] NSWCCA 427 when it emphasised the two main considerations for the dispensing power: the probative value of the evidence and any prejudice caused to the accused by the Crown's failure to give the notice required by the statutory provision.
It is these two considerations which in my view, represent the starting point for determining whether to exercise the dispensing power; even before consideration is given to s 192(2); although it is also apparent that the considerations are intertwined.
As to the first of those purposes, in circumstances where the accused did not take issue with the operation of the presumption that the proposed tendency evidence had significant probative value (s 97A(2)) this, itself, is factor that weighs positively in the exercise of the dispensing power. I note in this respect, that the two decisions that the parties relied upon in argument preceded the enactment of s 97A and must now be read in the light of that important enactment. As to the second purpose, although she submitted that unfairness would be occasioned to the accused if the dispensing power was exercised, Counsel for the accused did not articulate, at least persuasively, what prejudice the accused would sustain by the exercise of the power. That was not surprising given that it is the charged conduct that the Crown substantially relies upon to support the asserted tendencies; about which the accused accepts that he has been on notice.
I now have regard to the considerations in s 192(2): adducing the tendency evidence will neither lengthen nor shorten the hearing nor, in the circumstances, necessitate any adjournment of the trial. 'Unfairness', for the purposes of s 192(2)(b) would encapsulate matters that might come within s 137 of the Evidence Act; but as indicated, the accused's Counsel did not object to the evidence on that basis and nor did she attempt to argue how, in the light of the presumptively significant probative value of the evidence, and appropriate directions to the jury, there was a risk that the evidence might be misused. I am not persuaded, in the circumstances, that there would be any material unfairness if the dispensing power is exercised. As indicated, the importance of the evidence is signified by the premise, upon which the Court now proceeds, that the tendency evidence has significant probative value. Its importance may go beyond that even, certainly for the Crown's case, where, as pointed out by the Crown, the evidence of complaint does not appear to be strong. I take into account the nature of the proceeding; including the matter adverted to in AC, where the community and the complainant have their respective stakes in the proceeding.
Section 192(2) is couched in non-exhaustive terms. The Court in AC did not suggest that the absence of explanation for timely service of a tendency notice was irrelevant. I do take into account the circumstance of delay and its lack of explanation although conceivably, the circumstance that child sexual complainants give their evidence by pre-recording in advance of the trial can lead to complications. Here, it seems, some delay was occasioned by what emerged from the complainant's evidence in her pre-recording. But although that is not all that is satisfactory and does not bring great credit to the Crown, it is far from conclusive.
As the Court of Criminal Appeal also pointed out in AC, there is no proper justification to refrain from exercising the dispensing power simply to punish the Crown.
There is, with no disrespect, anything said in RJ, a decision which, I reiterate, preceded the enactment in s 97A, and which expresses not dissimilar views to those that were rejected in AC, that alters my conclusion.
[5]
Orders
The Court directs that paragraph 97(1)(a) of the Evidence Act does not apply to the tendency evidence which is the subject of the tendency notice dated 16 May 2024 notwithstanding the Crown's failure to give notice of its intention to adduce that evidence no less than 6 weeks prior to the readiness hearing that was fixed for 4 April 2024.
[6]
Amendments
24 June 2024 - Name of accused anonymised
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Decision last updated: 24 June 2024