R v NS [2020] NSWDC 608

District Court New South Wales

Medium Neutral Citation: R v NS [2020] NSWDC 608 Hearing dates: 1 and 7 October 2020 Date of orders: 8 October 2020 Decision date: 08 October 2020 Jurisdiction: Criminal Before: Smith SC, DCJ Decision: 1. The application for orders under s 306J(1) is dismissed. 2. The notice of motion is dismissed. Catchwords: CRIMINAL LAW - Evidence – Application to sever indictment - tendency and coincidence Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: R v Bauer (2018) 266 CLR 56 R v Markuleski (2001) 52 NSWLR 82 WX v R [2020] NSWCCA 142 Category: Procedural and other rulings Parties: Regina (Crown) NS (Defence) Representation: Counsel: Ms J Layani Ellis (Crown) Mr B Brassil (Defence)

Solicitors: Office of the Director of Public Prosecutions NSW (Crown) Powerhouse Law (Defence) File Number(s): 2017/158687 and 2019/28889 Publication restriction: NON PUBLICATION ORDER FOR THE NAME OF THE COMPLAINANTS OR ANY INFORMATION THAT MAY IDENTIFY THEM

Judgment 1. The accused was tried before Judge Grant SC and a jury in 2019 by indictment containing 21 charges of sexual offences: 19 against JU and two against KK. The trial judge directed a verdict in respect of seven of those counts (relating to JU) and the jury returned a verdict of not guilty in respect of a further four counts. The jury was unable to reach a verdict in respect of the remaining 10 counts and was discharged. 2. The trial on those remaining 10 counts (now contained in an amended indictment) is listed for hearing commencing on 12 October 2020. 3. By an undated notice of motion the accused applies, in essence, for three orders: first for the indictment to be severed so that the counts relating to each complainant be heard separately; secondly, an order under s 306J of the Criminal Procedure Act 1986 that JU and KK be compelled to give evidence at the trial or trials; and thirdly, that the amended tendency notice dated 18 August 2020 be struck out. 4. It is convenient to deal with the tendency issue first. 5. Evidence of a person's tendency is not admissible to prove that tendency unless the party seeking to tender the evidence gives notice of its intention to do so and the court thinks that the evidence will, either by itself or having regard to the other evidence adduced, or to be adduced by the party seeking to adduce the evidence have significant probative value: Evidence Act 1995 s 97(1). 6. There is a further requirement in criminal cases where the evidence is intended to be used by the prosecution against the accused. In those cases, the evidence cannot be used unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant: Evidence Act 1995 s 101(2). 7. The effect of these provisions was considered by the High Court in R v Bauer (2018) 266 CLR 56. The Court explained at [51] that the cross-admissibility of evidence of sexual acts: "…rests on the "very high probative value" of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person." 1. In respect of cases that involve multiple complainants, the Court said, at [58], that in order for the evidence of "offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together". It explained that if "there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true". 2. The term "unfair prejudice" in s 101 conveys the same meaning as it does in the context of s 137, that is, the idea of harm to the interests of an accused person by reason of a risk that the jury will use the evidence improperly in some unfair way. 3. The notice served by the Crown indicates its intention to adduce evidence that the accused had a "sexual interest in young girls of or under the age of 16, who referred to the accused or regarded him as "uncle" and who resided or stayed at the house and his willingness to act upon it by committing sexual offences against them in an opportunistic way." 4. The notice refers to the transcript of evidence given at the first trial and statements made by the first and second complainants in respect of the 10 counts that are in the amended indictment as well as to the statement by Amy Skinner. Ms Skinner did not give evidence at the first trial. 5. The evidence referred to in the notice bears a number of significant common features: the sexual acts all took place in the house where the complainants and Ms Skinner were residing; they involved young girls who were trying to sleep at night; they were opportunistic and involved acts such as rubbing, moving his hand under their clothes and touching their genitals and breasts. While it is true, as submitted by the accused, that there are differences between the acts, especially the fact that Ms Skinner was 16 at the time whereas the complainants were around eight, that fact does not undermine the common features that indicate a tendency to have a sexual interest in young girls and to act on it in an opportunistic way. 6. The only difficulty for the Crown is that there is nothing in the statement of Ms Skinner to indicate that she referred to, or even thought of the accused as "uncle". In light of that, the Crown is to amend the notice to exclude the words "who referred to the accused or regarded him as 'uncle' and". Subject to that amendment, the evidence satisfies s 97 of the Act. 7. The only unfair prejudice said to arise is that there is a reasonable inference to be drawn that the evidence of the two complainants was contaminated by their close relationship. That point does not in truth address the question of unfair prejudice as explained above, but rather, goes to the probative value of the evidence. In that respect, however, as explained in Bauer, unless the risk of contamination, concoction or collusion is so great that it would not be open to a jury to accept the evidence, the determination of probative value excludes consideration of credibility and reliability. I am not otherwise satisfied that the probative value of the evidence outweighs the danger of unfair prejudice to the accused. 8. For those reasons, the evidence referred to in the Crown's tendency notice dated 18 August 2020, amended as I have indicated, is admissible. 9. Counsel for the accused accepted that his application for a separation of the counts concerning each complainant depended on the success of his argument on tendency. That was an appropriate concession to make. Given that the evidence of each of the complainants will be cross-admissible in respect of each of the counts, I am not satisfied that it is in the interests of justice that the counts concerning the different complainants be determined separately. 10. The final issue is whether either or both complainants ought to be compelled to give evidence in the further trial. 11. In circumstances where the charges concern sexual offences against children and the original trial was discontinued in respect of 10 of the 21 counts on the indictment, Div 4 of Pt 5 of the Criminal Procedure Act 1986 applies. In particular, where, as here, the Crown has given notice of its intention to adduce the record of the complainant's evidence under s 306I, and no ruling is made under s 306I(5), s 306J(1) provides that where that evidence is admitted, the complainant is not compellable to give evidence, subject to one matter. 12. The proviso to the general rule arises where the Court considers that it is "necessary" for the complainant to give further evidence: 1. to clarify any matters relating to the original evidence of the complainant; 2. to canvas information or material that has become available since the original proceeding; or 3. in the interests of justice. 1. These provisions were considered by the NSWCCA in WX v R [2020] NSWCCA 142 where Beech-Jones J, who gave the leading judgment, noted the following characteristics of s 306J(1): "38 First, as stated in the Second Reading Speech, the starting point is the presumption that the complainant is not compellable. 39 Second, as noted, s 306J(1) does not confer a discretion but instead requires an evaluative judgment be formed, such that if the court is satisfied in terms of the provision then the complainant is deemed compellable. 40 Third, a restrictive aspect of the provision is that, before it is determined that a complainant is compellable, the Court must be satisfied that it is "necessary" for the complainant to give further evidence as per any of ss 306J(1)(a) to (c). The word "necessary" is a "strong word" and requires more than the formation of an opinion that something is "convenient, reasonable or sensible" (Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30] to [31]). 41 Fourth, against that, each of the criteria in ss 306J(1)(a) to (c) is expressed in relatively broad terms. In particular, the phrase "interests of justice" is a protean one taking its meaning from its context. It operates as the determinant of the most convenient and effective forum for the resolution of a civil dispute (BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61; "BHP v Schultz"), whether to call a further coronial inquest if further evidence becomes available (Attorney General v Coroner of South Yorkshire (West) [2012] EWHC 3783) and embraces the potentially competing considerations of fairness to an accused and the proper prosecution of persons guilty of crimes (Re Mickelberg (1992) 59 A Crim R 208 at 302 to 303). Generally, the "interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered" (BHP v Schultz at [15]). 42 In the context of s 306J(1)(c), the concept of "interests of justice" clearly embraces (and requires) a consideration of the impact on the fairness of the accused's forthcoming trial if the complainant does not give further evidence and the desirability of not occasioning further trauma to the complainant if they do. In relation to the former, if the court concludes that a trial will definitely be unfair if the complainant is not called then this would almost certainly compel a conclusion that s 306J(1) is satisfied (and, if not, the trial would have to be stayed). However, the converse does not apply, that it is not necessary to conclude that a trial will be unfair for s 306J(1) to be satisfied. Otherwise, the breadth of the criteria in ss 306J(1)(a) to (c) and the requirement that the court be satisfied that it is "necessary" for the complainant to give further evidence defy any attempt to proscribe any rules concerning when, or the circumstances in which, a complainant will or will not be required to give evidence at a subsequent trial." 1. At [43] his Honour explained that s 306J(1) requires consideration of the effect of the complainant's absence on the trial that is to come and the effect on the complainant if they give evidence at the new trial. 2. The court found that the trial judge had erred in his understanding of s 306J(1) and found that a proper consideration of the section would not have resulted in rejecting the application to compel further evidence. 3. Importantly in that case, there was a significant change in the defence case that meant that certain matters had barely been explored at the earlier trial. 4. The accused here relies on each of ss 306J(1)(a), (b) and (c). In relation to (b), he argues that it is necessary for JU to be compelled to give further evidence about information that has become available since the original proceedings, namely evidence from LU, JU's grandmother and primary carer, who is now to be called for the Crown. 5. In particular he argues that it will be unfair to him if he cannot cross-examine the complainant about conversations with LU. I do not accept that. First, the complainant was cross-examined in the original proceedings about conversations she had had with her grandmother (see, for example, T122.12-15; T116.34-50) and secondly, there is nothing in the statement of LU that relates to any conversations between her and the complainant. In other words, the accused has not identified any information that has become available since the original proceedings. Section 306J(1)(b) simply does not arise. 6. Next the accused says that further evidence is required to clarify matters relating to the original evidence of JU (s 306J(1)(a)) and in the interests of justice: (1)(c). The background to this submission is as follows. 7. In her evidence at the original trial, JU did not give evidence supporting the allegations in counts 6, 11, 15, 16, 17, 18 or 19. As a result the trial judge directed the jury to return a verdict in respect of those counts. 8. The jury returned a verdict of not guilty in respect of counts 7, its alternative count 8, count 9 and its alternative count 10. 9. The Crown intends to excise the portions of the record of the complainant's evidence that relates only to the charges in respect of which there were verdicts of not guilty. 10. The accused argues that editing the record will deny him the benefit of the evidence relating to the charges on which he was acquitted. In particular, evidence by JU that she did not remember certain acts and gave vague answers about other incidents, in other words, evidence that might lead her to be found to be an unreliable witness. 11. In his written submissions the accused argued that further cross-examination of the complainant JU on the question of her memory failures could substantially affect the assessment of the credibility of JU. He supported this contention in oral argument by reference to the decision of the New South Wales Court of Criminal Appeal in R v Markuleski (2001) 52 NSWLR 82. 12. These submissions do not engage s 306J(1)(a). There is no desire to clarify anything here, only to repeat what has already been done. The question then, is whether it is necessary that JU be compelled to give further evidence in the interests of justice. That requires an analysis of any unfairness to the accused brought about by the absence of the further evidence, the potential impact on JU of having to be cross-examined a second time about allegations of sexual offending against her when she was a young child and any other relevant matters. 13. The accused's arguments rest on the assumption that it is the Crown who decides what part of the record of the earlier evidence is to be tendered as evidence in the coming trial. Thus, the accused assumes that there will be none of the evidence which he now says may affect the credibility of the complainant JU and thus give special force to the inevitable Markuleski direction. That assumption, however, is not necessarily correct. The question of what parts of the record of a complainant's evidence is to be admitted is determined either by direction of the Court under s 306I(6) or by agreement with the accused or his counsel under s 306I(7). 14. The process of editing is one that is, or ought to be, anterior to any application under s 306J(1). It is only once it is known what parts of the record will be admitted that the court can properly assess whether it is necessary, for example, in the interests of justice for the complainant to be compelled to give evidence. 15. That said, given the narrow focus of the argument on this application, it is possible to determine the issues without any determination or agreement under s 306I. 16. First, on the assumption that there is, for whatever reason, agreement or direction that leaves the relevant portion of JU's evidence in the record to be tendered, that evidence has already been tested and further submissions on it may be made. No opportunity will be lost to the accused. 17. On the other hypothesis that all the evidence relevant to this application is excised from the record, the accused will lose the opportunity to rely on the aspects of JU's evidence which he says may affect her credibility. However, that opportunity carries with it the real risk that the jury will be presented with evidence of uncharged acts and, at least in respect of the four counts in respect of which the jury returned a verdict of not guilty, the new jury may take a different view of that evidence. It is not bound by the conclusion of the earlier jury to the extent that it must find that evidence lacks sufficient credibility to warrant a finding that the offences were committed. 18. Thus, the effect on the accused of the absence of this evidence will potentially be both positive and negative. On the other hand, the likely impact on the complainant JU being required to return to give evidence will be negative and, in my view, outweighs any disadvantage that the accused may face by reason of the absence of the evidence. 19. For those reasons, I am not satisfied that it is necessary in the interests of justice for the complainant JU to be compelled to give evidence. No submissions were made concerning the evidence of the complainant KK and so I reach the same conclusion in respect of her. 20. The application for orders under s 306J(1) is dismissed.