District Court New South Wales Medium Neutral Citation: R v Sams [2021] NSWDC 745 Hearing dates: 07 & 08 June 2021 Date of orders: 08 June 2021 Decision date: 08 June 2021 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: Allow the Crown to use the evidence of the conduct supporting the two counts, and as disclosed in the interview of 3 October 2008, for tendency purposes in accordance with the notice given Catchwords: EVIDENCE — Tendency evidence — Criminal proceedings Legislation Cited: Crimes Act 1900 Evidence Act 1995 Category: Principal judgment Parties: Regina (Crown) Jason James Sams (Accused) Representation: Kylie Henry (Solicitor Advocate) William Buxton (counsel for the Accused) Director of Public Prosecutions (NSW) (Crown) O'Brien Winter Partners (Accused) File Number(s): 2019/00387612 Publication restriction: No publication of the name of the complainant or of any information that may enable their identity to be ascertained REVISED Judgement – Tendency Evidence Introduction 1. On 7 June 2021 Jason James Sams appeared in the District Court, Newcastle for trial. A jury was selected and after argument upon the objection raised by the accused regarding evidence of context and for tendency purposes the trial continued before me with a jury of 12. The Offences 1. The offences with which the offender was charged were both contrary to s 66A(1) Crimes Act 1900 with the application of s 80AF Crimes Act 1900 because of the range of dates between which the offences were alleged to have occurred. Both counts were expressed in identical terms: Between 31 December 2007 and 31 December 2010, at Thornton in the State of New South Wales, did have sexual intercourse with SS-C, a child then under the age of ten years, namely, four, five, or six years. The Application 1. The Crown announced that it would rely upon evidence for tendency purposes pursuant to s 97 Evidence Act 1995. Before then, the accused's counsel advised that there was "a brief issue as to context evidence", to adopt his words, to which there was objection, contained in a pre-recorded interview of the child by police when he was about four years of age, in which he said that some things had happened with the accused. 2. Subsequently the Crown provided a bundle of material relevant to the evidence the Crown wished to adduce for these purposes, marked as Exhibit A on the voir dire. I heard argument and reserved my decision overnight. On 8 June 2021 I announced that I would permit the Crown to rely upon the evidence for tendency purposes with reasons to follow. The Crown's Notice 1. The Crown gave notice of the following matters in the appropriate form: 1. The indictment charged two counts; 2. The Crown sought to rely upon the complainant's evidence as tendency evidence in respect of both counts, upon the contention that the evidence was cross admissible as tendency evidence; 3. The Crown sought to rely upon the complainant's evidence of uncharged acts found in the second interview of the complainant on 3 October 2008; 4. The state of mind to be proved was sexual interest in the complainant; 5. The tendency to act in a particular way to be proved was to act upon the aforementioned state of mind, by touching the complainant's genitalia when the complainant was in the accused's bedroom, when before, during or after the alleged acts the accused or the complainant were playing video games in the accused's bedroom; 6. The Crown relied upon the interview of the complainant on 3 October 2008, the entire interview of the complainant on 10 September 2019, the entire interview of the complainant on 2 December 2019, and the statements by Natasha Sams on 23 October 2019 paragraphs 17 – 19 and 17 June 2020 paragraphs 4 – 11. Submissions – Context Evidence 1. The initial position taken by the Crown was that the evidence now the subject of challenge had already been admitted without objection in the pre-recording of the complainant's evidence before another judge of this court, and it was understood at that time that there was no objection to the admission of the evidence as context evidence and for tendency purposes. The Crown maintained that the evidence was admissible for both purposes. 2. I am of the view that although the trial had commenced with the tender of evidence in the proceedings conducted in accordance with the pilot scheme for the recording of evidence such as this prior to the selection of the jury, the accused should not be denied the opportunity to subsequently raise a challenge to the evidence and seek its exclusion, even though no objection was raised at the time it was presented. 3. My reasons appear at page 36 of the transcript together with my decision to allow the application on behalf of the accused to proceed. 4. This was not an application to re-agitate an argument upon which there was a previous ruling; it was an argument that had not been advanced before this. Even if there had been an evidential ruling, the accused would not be denied the opportunity to renew a challenge if circumstances in the trial evolved to justify it. If the evidence had been led in the presence of the jury in the traditional way, and at some point an application was made to excise some of the evidence from the jury's consideration because of the impact of s 137 Evidence Act, the court would have power to exclude the evidence from the jury's consideration if it ought not to have been before them. This might mean that the trial would abort, unless the question involved something not so egregious as to require the discharge of the jury but could be addressed with appropriate directions upon the evidence being taken from them. The Crown agreed that the court would have that power, depending upon the circumstances of the case. 5. My decision was that since the jury selected in the trial had not heard the evidence, there was no risk of the trial miscarrying if, upon my consideration of the challenge, I came to the view that the evidence to go before them should be further refined to exclude some part of it. 6. The accused's counsel conceded that he ought to have raised his objections at an earlier point, but his failure to do so did not deny him the opportunity at this stage, before the jury had heard any of the evidence. 7. He submitted that the evidence sought for context purposes could only be used to explain the nature of the relationship between the accused and the complainant, or to explain the delay in complaint, but that it did neither in this instance. He also intended to press for a direction in terms bringing to the jury's attention the accused's loss of forensic advantage from delay. If I was against the submission challenging the evidence offered to provide context, counsel submitted that it must be excluded as unfairly prejudicial in accordance with s 137 Evidence Act 1995. 8. Counsel took me to responses by the complainant that he sought to challenge. Interview of 3 October 2088 1. Counsel referred to questions 35 to 79: Q35 Tell me what a lie is. A Well I don't know what a lie is. Q36 You don't know what a lie is. O.K. How did you and grandma come here tonight? A It's not night time. Q37 This afternoon sorry, you're quite right, today. A Um. Q38 How did you come here from grandma's place? A Drive a car. Q39 By--- A Yeah, with a car. Q40 By car. A Yeah. Q41 O.K. A Grandma's car. Q42 In grandma's car. A Yeah. Q43 So if I said that you came here in the bus, would that be the truth or would that be a lie? A The truth. Q44 That would be the truth. How did you come here though? A By car. Q45 By car? A Yeah. Q46 So if you came here, if I said you came here in a bus, would that be the truth? A Yes. Q47 Yes. A That would be the truth too. Q48 That would be the truth too. A Yeah. Q49 Tell me what the truth is? A I don't know. Q50 You don't know. O.K. What are you wearing? A Pants. Q51 Pants. A Pirate. Q52 Pirate pants. A Yes. Q53 Mmm. So if I said you were wearing a skirt. Would that be the truth or would that be a lie? A The truth. Q54 The truth. I think you're playing games. You'd be wearing pants. A Yeah, boys wear pants and girls wear skirts. Q55 Yes. So if I said you were wearing a skirt, it would be a lie, wouldn't it? A Yeah. Q56 Mmm. O.K. Let's say we'll go back to how you got here, 'cause you're really wearing pants. So if I said you were wearing a skirt, it'd be a lie. A Girls wear, skirts for girls. Q57 Mmm. A But boys, don't like skirts. Q58 Mmm. A But I like skirts on a --- Q59 Yeah. O.K. What happens if somebody tells a lie? A I don't know. Q60 You don't know. Do you go to pre-school? A No. I go to pre-school. Q61 Mmmm. A Um. Next year. Q62 O.K. A I'm going next year. Q63 I'm just going to ask Amanda a question. A Yeah. Q64 Is that all right? A What? Q65 I'm just – O.K. Now I'm going to tell you a story. If um, there's a boy outside playing with a ball and he throws it and the ball breaks the window and his mum comes outside and says, "Did you break that window?" And the boy says, "No I didn't." Is that the truth or is that a lie? A A lie. Q66 A lie. Yes. And why is it a lie? A Because the boy lied. Q67 Mmm. Because the boy really did break the window. And what will happen to the boy for lying? A Get smacked and get into corner. Q68 He gets smacked and get into the corner. So he'd get into trouble. So people, sometimes if someone tells a lie, they can get into trouble. O.K. So while we're talking today, it's important that we talk about what really happened. O.K. Will you tell me only the truth, what really happened? A No I don't. Q69 Mmm. A No I don't. Q70 No you don't. No you don't, what? Did you say righto or no, I don't or something else? A No I don't. Q71 No I don't. Mmm. O.K. So what don't you want to do? A I don't want to come here. Q72 Mmm. A It's gone a little bit, I want to go home. Q73 You want to go home. A Yeah. Q74 O.K. So while we're talking, before you go home, will you tell me only what really happened? A No I don't know, don't know. Q75 You don't, you don't know. A No. Q76 No. What don't you know? A I don't know how to talk about it. Q77 What don't you know how to talk about? A About the truth and the, and a lie. Q78 About the truth and lies. A Yeah. Q79 I'm getting confused. Are you getting confused? A Yeah. 1. Counsel referred to questions 213 to 221 in response to which he asserted that the accused had touched him at his "cranky Nanny Pops". With his answer at Q213 he demonstrated by moving his hand about his waist pointing to his genital area. He was more specific with this allegation in response to Q240 where he referred to his "doodle" which he said the accused touched. At questions 277 and 278 he was again asked about telling lies: Q277 Have you told me any lies in this statement? A Yes Q278 Yes. A O.K. 1. In response to Q279 he said he was hungry and wanted to go home, consistent with his demeanour as he answers the two preceding questions. 2. It is uncontroversial that he was aged four at the time of this interview, born XX XXXXX 2003. He did not in the interview say when the touching he there described occurred. 3. On 16 April 2021 the complainant, then aged 17, when giving pre-recorded evidence before another judge was asked about the interview of 3 October 2008, shown to him by police immediately before he was interviewed on 18 May 2020, in the course of which he said he recognised himself in the recording but had no recollection of taking part in it. This evidence is at page 11 of the transcript of 16 April 2021. 4. The representations by the complainant about the touching was offered by the Crown as evidence of context upon which I directed the jury. 5. The accused challenged the use of the evidence for this purpose. His submission was that it was not appropriate for use as context evidence for it was not necessary to properly understand the context of the other occurrences alleged by the complainant upon which the charges were brought, there was no issue of delay in the complaint, and there was no difficulty understanding the relationship between the complainant and the accused as nephew and uncle in the extended family to which they belonged and that they came into contact with each other from time at the premises where the accused lived with his parents. 6. Counsel asked rhetorically, if the evidence is not necessary to explain the relationship or the context of the allege offences, what value does it have? 7. Counsel submitted that if it has some probative value as context evidence it is limited and carries such unfair prejudice balanced against the limited probative value that it might have that s 137 Evidence Act 1995 is engaged and it must be excluded. Counsel also noted that the assertions in the interview did not specify when the touching occurred, but that the interview was on 3 October 2008 within the time line specified in the charges on the indictment, with the risk that what he there described might have been referable to one of the offences charged and not a separate episode of misconduct. 8. Counsel conceded that it could not be said that the content of the interview was inadmissible but argued for the reasons given that it ought to be excluded. 9. The Crown argued for the use of the evidence for context purposes and as part of the tendency evidence upon which it would advance. 10. I was not persuaded that the evidence should be excluded and concluded that the Crown ought to be permitted to have it as context evidence. I accepted that it was appropriate to admit the evidence to place the complainant's evidence of the conduct upon which the charges were brought into the history of the alleged conduct by the accused towards the complainant as it evolved over time in what was alleged to be a continuing history of the accused's conduct toward the complainant, and to address any perception of artificiality or unreality in the complainant's evidence. 11. I allowed the evidence of the allegation in the interview of 3 October 2008 as evidence of context with appropriate warnings to the jury to as to the purpose the evidence had, and the limitations attaching to their use of it. Submissions – Tendency 1. The Crown referred to the tendency notice it had issued and the events upon which it relied to prove that the accused had the tendencies for which it contended. 2. The Crown submitted that if the jury did not accept the argument in support of the use of evidence for tendency purposes, evidence of the event disclosed in the interview of 3 October 2008 would be available as context evidence. 3. The presumption in s 97A Evidence Act 1995 applied since the accused as arraigned after 1 July 2020. This provides, 1. This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue. 2. It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2)— 1. tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest), 2. tendency evidence about the defendant acting on a sexual interest the defendant has or had in children. 1. Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, any other child or children generally. 2. Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so. 3. The following 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 (whether considered individually or in combination) to warrant taking them into account— 1. the sexual interest or act to which the tendency evidence relates (the "tendency sexual interest or act") is different from the sexual interest or act alleged in the proceeding (the "alleged sexual interest or act"), 2. the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred, 3. the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject's age, sex or gender) are different to those of the subject of the alleged sexual interest or act, 4. the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act, 5. the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act, 6. the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features, 7. the level of generality of the tendency to which the tendency evidence relates. 1. In this section—"child" means a person under 18 years of age. "Child sexual offence" means each of the following offences (however described and regardless of when it occurred)— 1. an offence against, or arising under, a law of this State involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence, or 2. an offence against, or arising under, a law of this State involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence, or 3. an offence against, or arising under, a law of the Commonwealth, another State, a Territory or a foreign country that, if committed in this State, would have been an offence of a kind referred to in paragraph (a) or (b), 4. but does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct. 1. Counsel for the accused argued against the use of the evidence of conduct disclosed in the interview of 3 October 2008 for tendency purposes, pointing to the difficulties created by the responses from the complainant when asked about his understanding of truth and lies, thereby limiting the probative value of the evidence of the complainant's representations on that occasion. As I understood his submissions they were focused upon that conduct which I permitted the Crown to use as context evidence, and challenged the use of it for tendency purposes, arguing that notwithstanding the presumption given by s 97A Evidence Act 1995, when the evidence of the event described in that interview is also to be used for tendency purposes s 101(2) Evidence Act 1995 is engaged. This provides, Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. 1. Counsel submitted that the evidence provided by way of that interview does not have substantial probative value; I believe he intended to use the term significant probative value consistent with s 97, s 97A, and s 101 of the Act as presently enacted, or had overlooked that the term substantial had been removed by legislative amendment prior to the arraignment of the accused. 2. S 97A(4) would permit the court to disregard the presumption if there are sufficient grounds to do so. As I understood the submission it was advanced upon the premise that the interview included representations from a four year old complainant challenging the proposition that he understood truth and lies, and that when he was played the interview before he was further interviewed by the police when aged 17 years he had no recollection of the interview though he recognised himself in that recording. 3. My perception of the complainant as he presented in the interview of 3 October 2008 is that he understood the expectation that he would provide answers that were both truthful and accurate, notwithstanding the answers he gave that are quoted above. I observed his demeanour throughout the interview, during which he exhibited an attitude consistent with wanting to conclude the process and go home. This is hardly surprising considering his age at the time. However, when the entire recording is considered, I do not accept that one could come to the view that he misunderstood that he was there to provide his reliable account in response the questions posed, but that he did so responsively and with actions consistent with what he was alleging. At that age it would have been masterful to have created a false description and present it in the way that he did. 4. The use of questions of reveal an understanding of truth and lies, which in reality seek responses in terms of accuracy, is perhaps the most efficient and effective way of revealing whether the child witness appreciates the importance of truth in these processes, but it does not follow as a matter of course that responses given in terms of those quoted above reveal a misunderstanding of what is meant by truth or a lack of appreciation of the importance of being truthful. The responses criticised must be read and understood within the context of the entire interview and the responses given throughout. I do not have the reservations about these representations that were expressed by counsel. 5. The principles relevant to the assessment of whether evidence ought to be admitted for tendency purposes are now well established, and further developed with the enactment of s 97A Evidence Act 1995. 6. In determining the probative value of evidence for the purposes of tendency the trial judge should assume the jury will accept the evidence and, thus, should not have regard to the credibility or reliability of the evidence. For evidence to be admissible as tendency it is not necessary that it exhibit an "underlying unity", "a modus operandi" or a "pattern of conduct". A tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it. The test posed by s 97(1)(b) is whether the disputed evidence, together with other evidence, makes significantly more likely any facts making up the elements of the offence charged. In the case of multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible. 7. In assessing whether evidence has significant probative value in relation to each count, two interrelated but separate matters must be considered: first, the extent to which the evidence supports the tendency; and, second, the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is whether an offence was committed, it is important to consider both matters. 8. S 101 is concerned with balancing probative value against its prejudicial effect to determine whether the probative value of the evidence outweighs the danger of unfair prejudice. The word substantially was removed from the provision prior to the arraignment of this accused. The risk of unfair prejudice is assessed according to the risk of misuse of the evidence by the jury. This is addressed with appropriate directions to ensure so far as the trial judge can that the jury understand the relevant principles and their application for the limited purposes the evidence has. 9. The Crown case was that the accused had a tendency to have a sexual interest in the complainant and to act upon that interest by touching the complainant's genital area when in the accused's bedroom and when they were there playing video games. 10. The Crown relied upon the conduct disclosed in the first interview in which the complainant participated on 3 October 2008 when he alleged the accused touched him in the manner he then described, and because of the conduct upon which he allegedly engaged with which he was charged. 11. The Crown relied upon the conduct alleged in respect of each Count in the prosecution of the offence charged in the other for tendency purposes. 12. The representations upon which the first count was framed are contained in the complainant's interview of 10 September 2019, specifically at Q27 in response to which he said, …it started in the lounge room, he told me to go up to his room and 'cause I was so young I was very suggestible to adults and figures like that so I went into the room with him and he made me perform oral on him. And it happened like two or three times. 1. The representations upon which the second count was framed are contained in the complainant's interview of 2 December 2019 beginning at Q38. In response to that and subsequent questions he spoke to being in the accused's room watching him play games; the accused asked the complainant to suck his penis, and he complied. 2. In further questions asked during both interviews more information relevant to that event was elicited. It is not necessary to repeat all the questions and answers or the pre-recorded evidence during which the evidence by way of those interviews was presented. 3. I accept that the conduct alleged in the interview of 3 October 2008 and in respect of each of the counts on the indictment supported the proposition that the accused had a tendency to have a sexual interest in the complainant and to act upon that interest by touching the complainant's genital area when in the accused's bedroom, when they were playing video games, making it more likely that he committed the offences charged in the indictment. I am satisfied that the evidence upon which the Crown relied for each episode of misconduct alleged has significant probative value, independently of the presumption for which s 97A of the Act provides, and that the probative value of the evidence outweighed the danger of unfair prejudice to the accused. Decision 1. For these reasons I announced on 8 June 2021 my decision to allow the Crown to use the evidence of the conduct supporting the two counts, and as disclosed in the interview of 3 October 2008, for tendency purposes in accordance with the notice given. ********** Amendments 08 March 2022 - Added "3 October 2008" after the word "interview" in para [45] 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: 08 March 2022