R v New

Crown Case

1. The Crown case in a nutshell is as follows: Count 1 For Count 1 - that the complainant, on an evening in March 2019, after coming home after a night of drinking with a friend, returned home to the unit she shared with the accused, late and fell asleep on the bed intoxicated. The accused was not home at this stage. She woke up to the accused on top of her grabbing her breasts, nipples and touching her vagina under underwear. When she confronted him he said 'you were asking me to'. Later when having a further conversation about it she confirmed he had touched her while asleep to which he replied, 'what you think happened did not happen' or words to that affect. Count 2 That after spending a night at a hotel with the accused for her birthday on 13/14 December 2019, the complainant who had sex with the accused and consumed alcohol and methylamphetamine before she fell asleep and seeking 'a break' woke up to the accused having his penis inside her vagina - she told him to stop and became hysterical. She confronted him as to why he would do that to her when she was asleep and he replied 'you were there.'

Submitted Common Features

1. There are what are said to be common features between the allegations to support the admission of tendency evidence including: 1. They were all touched by the accused in similar ways 2. Whilst then in or when the accused was seeking out a romantic relationship with them, typically where there has been no indication they would consent and where the female has then indicated her lack of consent 3. In the two instances where he was confronted the accused alleges there was in fact consent despite their lack of consciousness 4. Temporal component between all three

The Law

1. Section 29A(1) Criminal Procedure Act 1986 creates a rebuttable presumption in favour of joint trials, where the Crown has given notice that it proposes to rely on tendency or coincidence evidence.
2. Section 29A(2) provides that s 29A(1) is subject to s 21(2) of the Act. The latter confers a discretion on the court to make an order for separate trials where of the opinion the accused may be 'prejudiced or embarrassed in his defence' because of being charged with more than one offence in the same indictment or because 'for any other reason is desirable to direct' a separate trial.
3. In determining an application under s 21 of the CPA, the question is not whether the charges are sufficiently related to justify joinder but rather the focus is on whether the accused person will be prejudiced or embarrassed and the impact on a fair trial should the counts remain joined: Allen v R [2020] NSWCCA 173 at [52] per Bell P.
4. If it is determined by the Court that prejudice or embarrassment may arise the following factors may be taken into account:

• The likely degree of prejudice or embarrassment
• The ability to give directions to the jury designed to cure or mitigate any prejudice
• The fact that severance will necessarily negative the practical and economic benefits of joinder
• The extent of the severance required
• The complexity of directions required in order to ameliorate any prejudice or embarrassment
• The cross admissibility of evidence
• The impact of severance on witnesses who may be required to give evidence on two or more occasions
• The age and circumstances of such witnesses
• The nature of the offence or offences to be severed

1. It is agreed that the determination of the application to sever the indictment and grant two separate trials ultimately depends upon whether the Crown is entitled to use the evidence of the two complainants - as to the specific counts on the indictment - as being cross admissible and used for a tendency purpose.

Crown and defence submissions

1. In written submissions the Crown submitted:

• The tendency alleged is not restricted to incidents of touching when the female is 'unconscious'. The tendency notice specifically expands upon this term to outline the circumstances this may encompass, including the reason for being unconscious as due to being intoxicated or drug affected, or just simply being asleep
• The tendency is for the accused to intentionally touch females in these circumstances - notably the Crown does not intend or seek to lead evidence where FK woke up naked and was told by the accused they had sex
• The evidence of the tendency is not only strongly supported but it has significant probative value when looking at the purpose of the evidence to the issues in dispute in the trial
• There are common features to the tendency [as outlined previously] and accordingly there are several peculiarities to the allegations that are in some way common across both complainants and the tendency witness which increases the probative value
• The conduct between all three have a temporal connection
• The available tendency makes more likely the facts making up the charged offence, that is, whether the acts occurred and if the complainants were in fact asleep, which in turn bears upon consent issue and whether he knew they were not consenting
• Any risk of contamination, collusion or concoction goes only to the credit and reliability of the complainant and not relevant to the determination of probative value
• There exists no risk that the jury would use the tendency evidence in an unfair way, it would not be overwhelming and not confusing. The evidence is intertwined factually and little, or no unfair prejudice can be readily identified and a jury can be guided by strong and appropriate judicial directions

1. In oral submissions [in reply to the defence submissions below] the Crown submitted:

• The tendency alleged is to touch an unconscious female which includes a sleeping female
• FK's evidence reveals she was clearly sleeping and awakes to the contact by the accused - she woke up to him pressing his penis into her back
• With EM she states she was asleep and although initially was unsure if accused was asleep when he touched her the touching continued when both awake

1. The defence opposed the leading of the tendency evidence and submitted if the Crown was prohibited from leading it there should be a separate trial. It was submitted:

• The evidence the Crown relies upon does not establish the tendency the Crown seeks to establish and does not have significant probative value in the context of the proceedings
• The primary argument centred around the evidence of FK and it was submitted that her allegations related to alleged incidents in 2018 whereas the complainants' allegations concern 2019
• The evidence of FK falls into a different category and does not support the asserted tendency alleged and does not possess the requisite 'significant probative value' required by s 97 Evidence Act in combination with other evidence e.g. due to its absence of detail, dissimilarity and its vagueness - further submitting that para 5 of her statement does not reveal she was unconscious and the second incident indicates an impression that the accused might not have been conscious himself
• Further - the difficulty in assessing whether EM was unconscious as opposed to experiencing blackout or memory loss due to combined effect of drugs and alcohol followed by a period of confusion
• The proposed tendency is not capable of directly bearing on the question of whether the two complainants were in fact unconscious
• Only superficial similarity between the allegations and thus not significantly probative
• The alleged tendency is only said to have manifested on a single occasion with each witness

1. In further submissions in reply Mr McMahon submitted:

• FK's evidence goes to the accused being persistent in his pursuit to have sexual relations but when awake - not unconscious and her allegations are general and representative behaviour
• Objects to certain messages between FK and the accused e.g. reference to 'terrible tendencies' and who this originated from
• And the references to his mental health treatment which are prejudicial with little probative value
• Many messages are inadmissible as opinion evidence, for example, I believe [EM]…
• In reference to EM the uncharged act has little probative value to the purported tendency as to intentionally touching
• In relation to that incident there is little to discern whether she was asleep or rather experiencing a lack of recollection and confusion due to coming down from her admitted methylamphetamine use.

Consideration

1. The tendering party bears the onus of establishing, on the balance of probabilities, any facts necessary for deciding that the evidence should be admitted: s 142 Evidence Act 1995.
2. Sections 97(1) and 101(1) Evidence Act 1995 read together, permit the admission of tendency evidence, if sufficient notice has been given, the evidence has significant probative value and that probative value outweighs the danger of unfair prejudice.
3. In determining the probative value of the evidence, the court is to take the evidence at its highest, and it should not have regard to issues of credibility or reliability in determining its admission. In assessing probative value, the Court assumes that the trier of fact will accept it.
4. As I have stated, notice has been served foreshadowing that the Crown proposes to call evidence from each complainant and the tendency witness as being cross-admissible as tendency evidence to demonstrate an asserted tendency on the part of the accused to act in a particular way and with a particular state of mind.
5. The tendency particularised in the notice was 'to intentionally touch the body of an unconscious female (unconscious because the female was sleeping or highly intoxicated and/or drug affected) with his hands and/or penis'.
6. The central issues at trial are whether he did what has been alleged and where sexual intercourse has been admitted or proven the issue of consent and knowledge of lack of consent loom large. The accused either denies doing what is alleged or asserts the complainant was a conscious and willing participant. A fact, if not the fact in issue, is whether the jury can be satisfied beyond reasonable doubt that each complainant is a truthful and reliable witness.
7. In relation to tendency evidence to be admissible it must have 'significant probative value', that is the evidence must be of importance, influential or of consequence in the context of fact finding [IMM v The Queen (2016) 257 CLR 300 at [46]]. The trial judge is required to take the evidence at its highest and to determine whether it has the capacity to be of importance or consequence in establishing a fact in issue. It does not usually depend on any assessment of its credibility or reliability. The issue is the assessment of the role that the evidence, if accepted, would play in the resolution of the disputed fact - that is, is capacity to contribute to that resolution.
8. A conclusion that such evidence has a high degree of probative value is likely "where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged." Hughes v The Queen [2017] HCA 20 at [41].
9. As observed in BC v R [2015] NSWCCA 327 by his Honour Justice Beech-Jones with the agreement of Justice Simpson at para [82]: "Assessment of whether the evidence sought to be adduced 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 admitted by the tendering party."
10. In R v Bauer [2018] HCA 40; 266 CLR 56 the High Court at [58] held that in matters involving allegations of sexual assault upon multiple complainants, for evidence of one complainant to be significantly probative of the offending against the other complainants, there must ordinarily be some feature of or about the offending which links the two together. If there is some common feature of or about the offending it may demonstrate a tendency by the accused to act in a particular way, the proof of which increases the likelihood that the account under consideration is true.
11. Further, in McPhillamy v The Queen (2018) ALJR 1045 Kiefel CJ, Bell, Keane and Nettle JJ observed that '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'.
12. The material sought to be tendered as tendency does not have to be the exact same criminal offences. There is no requirement that a tendency to commit the acts that constitute the crime must be established. There only needs to have a tendency, to act in a particular way relevant to the conduct, the subject of the charge (see R v Hughes at 184 and also R v Ford [2009] NSWCCA 306).
13. Thus the evidence does not have to have a striking pattern of similarity or even be closely similar. It does not have to involve an act that is compellingly rare or exceptional before it can have significant probative value (Arravina v R [2015] NSCCA 288).
14. Some features may be commonplace but does not deny them some significance in the determination of whether the test is satisfied (per Justice Beech-Jones in BC at [99]).
15. Although s 97 unlike s 98 does not use the language of similarity, of course the greater the similarities the more readily a Court will find that the evidence is of significant value (see Saoud v R [2014] NSWCCA 136).
16. In making assessment of whether evidence tendered has significant probative value, regard will inevitably be had of the similarities in the conduct relevant to the offence. That is different from requiring that the conduct bear similarities to the conduct with which the person is charged. This was emphasised by the Court in Saoud where Justice Basten observed at para [44]: "the nature of the similarities will depend very much on the circumstances of the case."
17. In Sokolowskyj v R [2014] NSWCCA 55 the Criminal Court of Appeal found there was a lack of connection between the form of sexual deviance pointed to by the supposed tendency evidence and the conduct, the subject of the charge in that case. The flaw in the admission of the tendency evidence was that it failed to have regard to the fact that the evidence only had probative values for the probability that the appellant committed the offence of indecently assaulting the complainant.
18. If the tribunal of fact was satisfied of any one of the counts on the indictment and that it established the tendency relied upon by the Crown in respect of one of two complainants/tendency witness then that evidence is substantially probative of whether the accused committed the other indictment counts.
19. I have determined that the proposed evidence, if accepted, is capable of establishing the accused has demonstrated a pattern of behaviour on his part - a tendency to act in a particular way, namely; 'to intentionally touch the body of an unconscious female (unconscious because the female was sleeping or highly intoxicated and/or drug affected) with his hands and/or penis'.
20. The offender was aged around 25, 26, 27 years of age and was intimately involved at some stage with both complainants and tendency witness in either 2018 or 2019. The allegations centre within that time period. Each complainant is a young female in her early 20s and younger than the accused. For each count on the indictment or uncharged act the allegation involves the accused and the said complainant/tendency witness sharing a bed and each of them waking up to the accused touching them or penetrating them in a sexual way. I do not consider that the 21 month gap from the first allegation to the last to be a sufficient temporal issue as was discussed in McPhillamy to affect its probative value.
21. As to the argument of differences between the complainants' evidence such as to rob the evidence of probative value - there are, of course differences in the circumstances of each complainant - it would be odd if there were not - but there exists common features that links all three together and that is primarily as discussed above that all were: 1. They were all touched by the accused in similar ways 2. Whilst then in or when the accused was seeking out a romantic relationship with them, typically where there has been no indication they would consent and where the female has then indicated her lack of consent 3. In the two instances where he was confronted the accused alleges there was in fact consent despite their lack of consciousness. 4. Temporal component between all three 5. All in a bed with the accused 6. All alone in a room together
22. Evidence that the accused had such a tendency is, to my view, highly probative in assessing whether he did in fact sexually assault each complainant/tendency witness as alleged. Indeed, if accepted by the jury it significantly increases the probability that a complainant's allegation is true. The evidence is strongly probative and it makes it more likely to a significant extent that the accused committed an offence charged. The evidence has significant probative value for the purposes of s 97 of the Evidence Act.
23. It is then necessary to go on and consider whether or not s 101(2) Evidence Act operates to exclude the evidence as tendency evidence because the probative value of the evidence does not outweigh any prejudicial effect it may have on the accused.
24. In DAO v R [2011] NSWCCA 63 Simpson J observed that the term 'prejudicial effect' in s 101(2) is a reference to evidence being used against an accused person for a purpose other than for which it is admitted.
25. It has been accepted that the test of prejudicial effect is whether there is a risk of an unfair trial by reason of the admission of such evidence: R v PWD [2010] NSWCCA 209 at [71]-[73]. There is no defined limit as to the manner in which a trial may be rendered unfair by the admission of prejudicial evidence. There may be unfairness if a jury is diverted from its task of properly considering the evidence the subject of the charge, whether that be because of the volume of the impugned evidence or because of the temptation to punish the accused for other discreditable behaviour or because of the risk of the evidence inspiring an impermissible course of reasoning or otherwise.
26. The proper carrying out of the balancing task required by s 101(2) Evidence Act requires the identification of the type or types of prejudicial effect the evidence may give rise to and consideration of whether or why it is the probative value of the evidence outweighs or does not outweigh any such prejudicial effect: R v Ford (2009) NSWCCA 306 at [64] per Campbell J.
27. In Hughes the High Court noted at [17], "…. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that particular state of mind or may not have acted in that particular way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps over many years."
28. Importantly, it is not improper and thus not prejudicial for a jury to reason that if the accused has demonstrated the alleged tendency, he is more likely to have committed the offences alleged against him. To the contrary, this is the very reasoning that tendency evidence supports and the very basis upon which it is admitted: BC v R per Beech Jones at [81].
29. So as to the prejudice, it is proper to acknowledge that of its nature tendency evidence will have a prejudicial effect. It is obvious that there will be a degree of prejudice to an accused in the admission of tendency evidence involving, as it does, further occasions when the accused is alleged to have had non-consensual sexual interaction with a female he was sharing a bed with.
30. Here each allegation is not as equally serious as the other and thus the prejudicial nature of the whole of the tendency evidence must be firmly borne in mind in carrying out the weighing exercise required by s 101.
31. I have assessed the probative value of the evidence as significant, acceptance of it making it more likely the accused did assault each complainant in the manner that is alleged. I have weighed that against the prejudicial effect the admission of the evidence may have on the accused and I have determined the probative value of the tendency evidence outweighs any prejudicial effect it may have on the accused.
32. I have not overlooked in coming to the conclusion that I have, the submission that the jury would improperly use the evidence, be influenced by it and give it an importance it does not deserve. In considering such submissions I have taken into account as a relevant matter whether directions might be framed to ensure that the evidence was not misused in any way. It is necessary to recognise the intelligence and focus with which juries go about their deliberations: R v PWD [2010] NSWCCA 209 at [89].
33. In the present case, a jury can, I consider, be directed as to the permissible and limited use of the evidence and be warned against the impermissible use of it. The jury can clearly be warned not to substitute one complainant's evidence with another for proof that the accused committed a particular offence in question. The jury can also be directed not to simply reason that because if they were so satisfied he had committed an act alleged by one complainant then he must have done so at the particular time they are considering for a particular count. The jury can be advised as to use of the tendency evidence being only to the counts in the indictment and other evidence regarding uncharged acts or evidence of consensual sexual intercourse being used by the Crown for another purpose - context evidence. That is not an unusual situation in a trial of this nature. Frequently juries are directed as to the differing use that can be made of uncharged acts. It does not have the complexity complained of. The directions can direct the jury to consider the facts and circumstances pertaining to proof of the issues and can instruct the jury as to how the impugned evidence is relevant to those issues. Further, the jury can be directed to give careful consideration to the defence case and the defence response to the tendency evidence.
34. I consider any risk of unfair prejudice can be obviated by such directions, and further the jury will be quite capable of following such directions. That is not to say that directions will be adequate in each case. There will be cases where directions may not be sufficient to deal with the risk of prejudice to the accused and the prospect of prejudice cannot be disregarded just because directions can be conceived of which might guard against misuse. It is necessary to approach the matter in light of the circumstances in the particular case before the Court. I have done so and I have determined that in this instance the tendency evidence for all four complainants is cross admissible on each count on the indictment.
35. Given my ruling in respect of the admission of tendency evidence, there is, I understand no need to further consider the severance application.

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