R v Rumsby (No 2) [2023] NSWSC 230

Supreme Court New South Wales

Medium Neutral Citation: R v Rumsby (No 2) [2023] NSWSC 230 Hearing dates: 30 and 31 January 2023 1, 2 and 3 February 2023 Date of orders: 16 March 2023 Decision date: 16 March 2023 Jurisdiction: Common Law Before: R A Hulme AJ Decision: 1. The evidence concerning Counts 1 and 2 are cross-admissible for the purpose of permitting tendency and coincidence reasoning. 2. The evidence concerning the attack upon QD is inadmissible. 3. The application for severance of the two counts in the indictment is refused. Catchwords: EVIDENCE – pretrial ruling – tendency and coincidence evidence – sexual assault upon one victim and murder of another in small town 14 months apart – identity of perpetrator in issue – assessment of significant probative value – circularity of reasoning not involved in taking admissions into account – "close similarity" not required – remoteness in time but grave nature of the tendency – sufficient specificity of the asserted tendency – assessment in accordance with approach summarised in TL v The King [2022] HCA 35 – evidence concerning each count has significant probative value and is cross-admissible – no significant probative value in relation to uncharged incidents more than eight years later concerning a third victim – significant probative value in coincidence reasoning between counts as well – any unfair prejudice capable of being ameliorated by directions – evidence admissible – severance of counts refused. Legislation Cited: Evidence Act 1995 (NSW), ss 55, 97, 98 and 101 Cases Cited: BQ v R [2023] NSWCCA 34 DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487 Kanbut v R [2022] NSWCCA 259 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174 R v Rumsby [2023] NSWSC 229 Selby v R [2017] NSWCCA 40 Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528 Taylor v R [2020] NSWCCA 355 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 TL v The King [2022] HCA 35; (2022) 96 ALJR 1072 Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 Category: Procedural rulings Parties: Rex (Crown) Craig Henry Rumsby (Accused) Representation: Counsel: L Carr SC with C Hodgeman (Crown) N Broadbent with Z Alderton (Accused)