R v IW [2021] NSWDC 789

District Court New South Wales

Medium Neutral Citation: R v IW [2021] NSWDC 789 Hearing dates: 9 September 2021 Date of orders: 16 November 2021 Decision date: 16 November 2021 Jurisdiction: Criminal Before: Grant DCJ Decision: In relation to the tendency notice, the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. In relation to the uncharged act, the Crown should not be able to adduce the evidence as tendency or context evidence where it relates to a child presumed to be doli incapax. Catchwords: CRIMINAL PROCEDURE – evidence – tendency – historical child sexual offences – buggery – conduct that has ceased to be an offence – does section 97A of the Evidence Act 1995 operate to catch such conduct? – probative value of evidence – uncharged act – doli incapax Legislation Cited: Crimes Act 1900 (NSW) Crimes (Amendment) Act 1984 (NSW) Evidence Act 1995 (NSW) Cases Cited: The Queen v Bauer [2018] HCA 40 Category: Procedural rulings Parties: Regina IW Representation: Counsel: Mr Paul Kerr (Crown) Mr Scott Corish (Accused)

Solicitors: Office of the Director of Public Prosecutors (Crown) Perrot's Solicitors (Accused) File Number(s): 2020/00250955 Publication restriction: Non-publication order in relation to the name of the accused and the complainants, or of any information which may enable their identities to be ascertained

Judgment

INTRODUCTION 1. The accused faces a six-count indictment. The allegations are that he committed an act of buggery, or attempted buggery, with GW (count 1), JW (counts 2 and 3), PW (counts 4 and 5), and AW (count 6). 2. The dates of the alleged offending range from 1 January 1967 to 31 December 1969. The complainants are brothers.