R v DLW [2019] NSWDC 940

District Court New South Wales

Medium Neutral Citation: R v DLW [2019] NSWDC 940 Hearing dates: 28 June 2019 Date of orders: 18 December 2019 Decision date: 18 December 2019 Jurisdiction: Criminal Before: Bright DCJ Decision: See [50]-[51], [63]-[65] Catchwords: EVIDENCE — Tendency evidence — Criminal proceedings CRIMINAL PROCEDURE — Indictment — Amendment CRIME — Child sex offences — Sexual intercourse with child <10 CRIME — Child sex offences — Sexual intercourse with child >10 <14 Legislation Cited: Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: BC v R [2019] NSWCCA 111 Hughes v R [2017] HCA 20 IMM v The Queen [2016] HCA 14; 257 CLR 300 R v Bauer (a pseudonym) [2018] HCA 40 R v DLW [2019] NSWDC 305 R v Ford (2009) 273 ALR 286 R v LN; R v AW (No. 1) [2017] NSWSC 119 Category: Procedural and other rulings Parties: Regina (Crown) DLW (Accused) Representation: Counsel: Ms Tennant (Crown) Mr O'Sullivan (Accused)

Solicitors: Ms Thoms-Packer (Crown) Mr Conn (Accused) File Number(s): 2017/00134016 Publication restriction: Section 578A(2), Crimes Act

Judgment 1. DLW, born 3 February 1998, was to appear before the Gosford District Court for trial on 1 July 2019. 2. 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. 3. 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. 1. The accused pleaded not guilty to all counts. 2. 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). 3. 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). 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). 5. 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)" 1. The accused pleaded not guilty to that count. The alleged offending with respect to AP occurred when the accused was 16 years old. 2. Mr O'Sullivan on behalf of the accused opposed the application to present an amended indictment and lead tendency evidence from each of the complainants.