R v Rumsby (No 4) [2023] NSWSC 770

Supreme Court New South Wales

Medium Neutral Citation: R v Rumsby (No 4) [2023] NSWSC 770 Hearing dates: 23 and 24 May 2023 Date of orders: 24 May 2023 Decision date: 24 May 2023 Jurisdiction: Common Law Before: R A Hulme AJ Decision: Defence tendency evidence is admissible Catchwords: EVIDENCE – admissibility – tendency evidence relied upon by accused – raising of reasonably possible alternative inference to coincidence reasoning relied upon by Crown – significant probative value for defence tendency evidence contrasted to prosecution tendency evidence Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 R v Rumsby (No 2) [2023] NSWSC 230 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)

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 234445/2020

JUDGMENT 1. HIS HONOUR: The Crown has been permitted to rely upon tendency and coincidence reasoning in its endeavour to prove Counts 1 and 2. Count 1 alleges the attempted sexual assault upon LS and Count 2 alleges the murder of Ms Bright. The two events occurred within a short distance of each other in the small township of Gulgong some 14 months apart in 1998-9. The Crown case is that both events were sexually motivated and there are a number of similarities such that it is highly improbable that they were committed by different offenders. (For more detail, see R v Rumsby (No 2) [2023] NSWSC 230.) 2. In order to raise a doubt about the coincidence reasoning in relation to Count 2, the defence wish to adduce tendency evidence in relation to a person I will refer to as "Witness X" because there is a non-publication order in place. From about July 1999 to March 2000 he stalked a 34-year-old woman in Mudgee and made at least five offensive telephone calls to her. There was a significant sexual deviancy disclosed in the nature of this conduct. There appears to be no controversy about that because Witness X pleaded guilty to, and was sentenced in respect of, a multitude of offences in the Local Court in December 2000. 3. The defence argument in negating the coincidence reasoning in respect of Count 2 is that the event with which it is concerned (the murder of Ms Michelle Bright) could have occurred coincidently in relation to the event with which Count 1 is concerned (the attempted sexual assault upon LS). The contention is there is a reasonable possibility that the accused was not the perpetrator of the murder of Ms Bright because Witness X might have been. 4. To establish this as a reasonable possibility, the defence intend to point to three matters. First, Witness X's initial reticence to provide a DNA sample. Second, he was at least broadly in the same general area of Gulgong on the night of Ms Bright's murder as she was or may have been. Thirdly, he had a state of mind, namely a sexual interest in females with whom he had no or limited relationship, and that he had a tendency to act on that state of mind by acting in ways that are sexually inappropriate towards such females, and by stalking them both on foot and in his vehicle. 5. The defence accept that the latter invokes tendency reasoning, which is inadmissible unless the requirements of s 97 of the Evidence Act 1995 (NSW) are met. 6. The Crown objects to the evidence on the basis that it does not have the necessary "significant probative value". 7. The asserted state of mind is expressed in very general terms. For a 24-year-old male to have a sexual interest in females with whom they are not in a relationship, or are but only to a limited extent, is not unusual. However, the asserted tendency to act on that state of mind in the ways alleged is more specific and is rather unusual. 8. The capacity of the evidence to establish these tendencies is weakened by the fact it concerns Witness X's conduct towards just the one 34-year-old woman. However, that is balanced against the fact it is conduct that occurred on a number of occasions over a fairly lengthy period. 9. The capacity of the asserted tendency to negate the fact in issue, that is the Crown's assertion that the events in counts 1 and 2 could not have occurred coincidently because they were committed by different offenders, is of some substance. 10. Given the defence has no burden of proving anything, let alone beyond reasonable doubt, and only need to point to matters tending to disprove critical prosecution issues by showing there is something that is a reasonably possible alternative, the threshold requirement for tendency evidence to have significant probative value is quite unlike that which applies when the prosecution seeks to rely upon evidence of a tendency. 11. Prosecution evidence will have significant probative value if it strongly supports proof of a tendency and if the tendency strongly supports proof of a fact in issue: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41]. Defence tendency evidence is not adduced to prove a fact in issue but rather an alternative to a fact sought to be proved by the Crown which need only be established to be a reasonably possible alternative. 12. While the Crown submissions identify quite a number of weaknesses in the defence contention as to the probative value of the proposed evidence, I am persuaded that there is sufficient to meet the requirement of significant probative value when the evidence is taken at his highest. 13. For these reasons the evidence is admissible.