R v MS (No 1) [2020] NSWDC 591

District Court New South Wales

Medium Neutral Citation: R v MS (No 1) [2020] NSWDC 591 Hearing dates: 28 September 2020 – 29 September 2020 Date of orders: 29 September 2020 Decision date: 06 October 2020 Jurisdiction: Criminal Before: Judge Weinstein SC Decision: I allow the Crown to adduce the context evidence. Catchwords: Context evidence – regular sexual abuse over an 8 year period, sometimes on a daily basis – pattern of abuse – unfair prejudice – sheer volume of context evidence – likely to elicit an emotional response – Crown case implausible in isolation – section 293 exiting relationship Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: BJS v R (2013) NSWCCA 123 DJV v R [2008] NSWCCA 272 Gilbert v R [2000] HCA 15; 109 A Crim R 580 Glennon v R [1992] HCA 16; 173 CLR 592 KJS v R [2014] NSWCCA 27 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 The Queen v Dennis Bauer (a Pseudonym) [2018] HCA 40 Category: Procedural and other rulings Parties: MS (Defence) Regina (Crown) Representation: Counsel: Mr A McMaster (Crown) Ms B O'Reilly (Defence)

Solicitors: DPP Legal Aid File Number(s): 2018/00286896 Publication restriction: NON PUBLICATION ORDER FOR THE NAME OF THE COMPLAINANT OR ANY INFORMATION THAT MAY IDENTIFY HER

Judgment 1. The Crown seeks to adduce context evidence of other acts of misconduct by the accused in addition to the 7 counts on the indictment, which allegedly occurred during an 8 year period, 2009 - 2017. 2. The context evidence sought to be adduced is: 1. Evidence from the complainant that the accused subjected her to ongoing sexual abuse to place the charged offences in context; and 2. Evidence from the complainant that the accused was aggressive and controlling in the family home. 1. The context evidence relating to aggressive and controlling behaviour is not contested by counsel for the accused, Ms O'Reilly.