District Court New South Wales Medium Neutral Citation: R v Young (a pseudonym) [2021] NSWDC 622 Hearing dates: 5 November 2021 Date of orders: 5 November 2021 Decision date: 05 November 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Application to exclude proposed tendency evidence is refused. Catchwords: CRIME — sexual offences — two complainants -assault and act of indecency on a person under the age of 16 - assault and act of indecency on a child under 10- sexual intercourse with a child under 10 CRIMINAL PROCEDURE — Trial — pre-trial application – admissibility of proposed tendency evidence EVIDENCE — tendency evidence — Criminal proceedings — application of s 97A Evidence Act Legislation Cited: Evidence Act 1995 Cases Cited: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 Shamouil v R (2006) 66 NSWLR 228; [2006]NSWCCA 112 Category: Principal judgment Parties: Brian Young (the accused) Director of Public Prosecutions Representation: Counsel: Mr M Gunning (for the accused) Ms N Keay, Deputy Senior Crown Prosecutor (for Director of Public Prosecutions) Solicitors: CVC Law & Conveyancing(for the accused) File Number(s): 2020/00236559 Publication restriction: The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; S15A Children (Criminal Proceedings) Act 1987. The name of the offender is not to be published or any information that may reveal the relationship between the accused and the complainant. Pseudonyms have been used in this judgment Pre-Trial JUDGMENT- Ex tEmpore revised 1. On 8 June 2021 Brian Young (a pseudonym) was arraigned in this Court and said he was not guilty of four counts involving two child complainants. The first two counts relate to the first complainant. They are, Count 1; an act of indecency on a person under the age of 16 said to have occurred in 1980 or 1981 and Count 2; sexual intercourse with a child under the age of 16, said to have occurred between July 1987 and July 1988. The second two Counts relate to the second complainant. Count 3 is an offence of assault and act of indecency against the second complainant, a child under 10, said to have occurred on 2002 at Tamworth. Count 4 is an act of sexual intercourse with the second complainant, a child under 10, said to have occurred between January and December 2002. 2. At the readiness hearing it was indicated that objection would be taken to evidence that went to an alleged tendency of the accused in relation to one complainant being cross‑admissible in the trial involving the other: and evidence by each complainant being cross‑admissible in the counts relating to them individually. 3. That tendency was particularised first, as the accused having a specific state of mind; a sexual interest in female children under 16 and, secondly, a tendency to act on that interest by engaging in sexual acts with female children who were in his care or under his authority. 4. I have the benefit of a Crown case statement and the statements of the two complainants. I have the benefit of comprehensive written submissions by Mr Gunning, counsel for the accused, and Ms Keay, Deputy Senior Crown Prosecutor. 5. Discussion this morning focused primarily on the recently enacted s 97A Evidence Act 1995 and its relationship with ss 97 and 101 of the Evidence Act. The proposed evidence is adduced for the purpose of providing a foundation for an inference the accused was more likely to act in a particular way or have the relevant state of mind on the particular occasion the subject of the charges. I must also perform the weighing exercise mandated by s 137 but that would not require significantly different considerations and the same result would follow my determination of the ss 97 and 101 issues. 6. In any trial all evidence must be relevant in order to be admissible but not all evidence that is relevant is admissible. Evidence is not admissible if it is excluded by one of the provisions of the Evidence Act. That Act requires or permits the exclusion of evidence or limits its use by reference to is probative value. It is accepted that the evidence relevant as it could rationally affect, directly or indirectly, the assessment of the probability of an existence of fact in issue; that is whether the accused committed offences against the two complainants. 7. I have them must ask: * Does the proposed evidence, if accepted, establish the accused, has a tendency to act in a particular way or have a particular state of mind? * Does the proposed evidence have significant probative value? and * Does the probative value of the proposed evidence outweigh the danger of unfair prejudice to the defendant? 1. Section 97(1) requires the evidence show a tendency to act in a particular way. While it is not strictly necessary that the evidence show underlying unity or a pattern the extent and nature of any similarity or its absence remains a relevant consideration. Multiple allegations of a sexual nature have probative force. But for the proposed evidence be significantly probative the logic of probability reasoning requires generally there be features about the offending that link the respective complaints: The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [58]. Common features can demonstrate a tendency to act in a particular way, proof of which increases the likelihood the account under consideration is true and must operate to reinforce the alleged behaviour of the accused in relation to a specific count. 2. When considering probative value the critical word is could which puts focus on capability: Shamouil v R [2006] NSWCCA 112: (2006) 66 NSWLR 228. The term 'significant' requires something more than mere relevance, something less than a substantial degree, import or of consequence. Evidence has significant probative value if it has a capacity for a jury to treat it as important in supporting an inference of guilt. The disputed evidence, and here it is disputed, should make it more likely to a significant extent, the facts that make up the elements of the elements charged. 3. The admissibility of the tendency evidence is the determination of the undertaking taking the evidence at its highest. That determination of probative value excludes considerations of its credibility and reliability; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [52]. 4. Now that said, the mere fact that someone has said to have committed offences on other occasions may not have probative value and the tendency evidence cannot be used unless probative value outweighs its unfair prejudicial effect: s 101(2). 5. I must balance those competing factors by reference to the proposed evidence taking it at its highest. I have to consider the question of unfairness, that is whether there would be any reasoning or emotional prejudice and whether any potential for prejudice can be ameliorated by directions that must be given, such as those covered by s 165B of the Evidence Act. 6. Now despite the High Court of Australia in Bauer speaking with one voice on the question of tendency; in 2020 the New South Wales Parliament removed most of the Court's discretion to exclude tendency evidence in child sexual assault allegations. It did so in order to facilitate the greater admissibility of such evidence. 7. The new section 97A (2) provides that "It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of ss 97(1)(b) and 101(2). "It is a rebuttal presumption as "the court may determine that the tendency evidence does not have significant probative value if it is satisfied there are sufficient grounds to do so." 8. But, and a very important but, so far as s 97A is concerned, the defence's capacity to rebut any presumption is reduced by subsection (5) which sets out a number of "…matters, (whether considered individually or in combination,) are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4), unless the Court considers there are exceptional circumstances in relation to those matters." 9. The threshold chosen has, as the Attorney said in the second reading speech, set a "high bar." Parliament has effectively dictated to courts what it expects will generally be evidence of high probative value. As a judge who has sworn an oath to apply the law passed by Parliament I must apply that legislative dictate. 10. Mr Gunning, who appears for the accused, submits that there are three matters that in combination create "exceptional circumstances' such that that the proposed tendency evidence should be excluded. The first is that there was a gap of more than 20 years between the alleged offences against Complainant 1 and Complainant 2. Secondly, there was considerable delay from when the offences are said to have occurred to when they were reported to police. So far as Complainant 1 is concerned this was 40 years. So far as Complainant 2 is concerned 18 years. Thirdly, he submits, that each of the allegations is vague and general and that other proposed evidence contains significant generalisations. He submits that in combination the exceptional circumstances test in s 97A (5) has been met. 11. Ms Keay, in response, submits that on any review of the material the probative value of the proposed tendency evidence is significant given the relationship between each complainant and the accused, the nature of the allegations and the circumstances surrounding them. Each allegation contains similarities, which add to their probative value. 12. She submits that the time gap between the alleged event and its reporting may make the prosecution case more difficult to prove. She accepts it may also create disadvantages for the accused but these matters she says are matters best cured by judicial direction, utilising s 165B Evidence Act, as the High Court said in Bauer at [79]. 13. She said to deprive the Crown of proposed tendency evidence given the similarities between these allegations would not accord with the structure of the Act as modified by 97A. Section 97A applies in its terms, those terms are designed to set a very high bar before evidence of the sort sought to be led in these proceedings is excluded. The section specifically directs a judge the matters that are be considered "individually or in combination". The section directs the Court to not have regard to the very matters Mr Gunning took me to; level of generality, period of time between events and delay. 14. I accept the Crown submissions. Delays, of 40 years and 18 years, are unusual but far from extraordinary in this jurisdiction. It is not for me to say what probative value a jury should give to the evidence. I must consider what probative value the jury acting rationally and properly directed could give to the evidence: Bauer at [95] 15. Appropriate judicial directions will be given to ameliorate the potential for disadvantage to the accused: Bauer at [79]. But with great respect to Mr Gunning's submissions, given the sort of matters that appear to be encompassed by s 97A, unusual though they are, the circumstances here do not fit within an exceptional category which would enable the Court to go behind the legislative direction so clearly set out in 97A. 16. Accordingly, the application to exclude the proposed tendency evidence is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2021