R v NB [2024] NSWDC 230

District Court New South Wales

Medium Neutral Citation: R v NB [2024] NSWDC 230 Hearing dates: 11 June 2024 Date of orders: 12 June 2024 Decision date: 12 June 2024 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph [27] Catchwords: EVIDENCE – criminal proceeding – alleged child sexual offences - Crown reliance upon tendency evidence – Crown's omission to serve tendency notice complying with requirement in s 97(1)(a) of the Evidence Act 1995 (NSW) – whether Court should exercise dispensing power under s 100(1) Legislation Cited: Evidence Act 1995 (NSW) ss, 97, 97A, 100, 192 Cases Cited: R v AC [2018] NSWCCA 130 R v Harker [2004] NSWCCA 427 R v RJ [2011] NSWDC 158 Texts Cited: Nil Category: Procedural rulings Parties: Office of the Director of Public Prosecutions (ODPP) NB (Accused) Representation: Counsel: Mr A Lynch for the ODPP Ms I Reed for the Accused

Solicitors: ODPP Donna Smith Criminal & Traffic Lawyer File Number(s): 2022/00265238 Publication restriction: Non-publication of the complainant's name and the names of others who might tend to disclose the complainant's name

JUDGMENT 1. Yesterday, the trial of this matter commenced, but after the jury was empanelled, it was sent away so that I could deal with an application brought by the Crown to dispense with the requirement under s 97(1)(a) of the Evidence Act 1995 (NSW) ('Evidence Act') to serve a tendency notice. The Crown brought that application under s 100(1) of the Evidence Act. No advance ruling was sought from me as to whether the proposed tendency evidence was otherwise inadmissible under s 97(1)(b), having regard to s 97A(2) of the Evidence Act; or any other basis. 2. The accused is being tried on indictment of five charges (the second being an alternative to the first) relating to sexual offences against the complainant. The offences were alleged to have occurred between 20 April 2020 and 27 August 2022 for the first three (when the complainant was aged between 5 and 7) with a slightly narrower date range (1 August 2022 to 27 August 2022) for charges 4 and 5 (when the complainant was 7 years of age). 3. The accused is the complainant's biological uncle. 4. The following procedural sequencing was set out in the Crown's submissions on its application (MFI 1) which Counsel for the accused did not dispute. 5. The accused was arraigned on 22 June 2023 on which occasion the trial date of 11 June 2024 was set. 6. The complainant gave her pre-recorded evidence on 26 March 2024. On that occasion she disclosed a further alleged offence committed by the accused. 7. That disclosure, the Crown says, resulted in the adjournment of a readiness hearing that had been scheduled for 4 April 2024, so that the Crown could consider whether to institute an ex-officio charge. The readiness hearing was re-scheduled for 9 May 2024. On that date, however, the readiness hearing was adjourned by consent for another week, to 16 May 2024. 8. On 16 May 2024, the trial date was confirmed. On this date, the Crown served on the accused's legal representatives a tendency notice. 9. The tendencies particularised in the notice were: 1. for the accused to have a particular state of mind, namely, a sexual interest in the complainant; and 2. for the accused to act in a particular way, namely, to intentionally touch her genitalia with his hand or penis and to commit cunnilingus upon her. 1. The Crown accepts that in accordance with the Court's Practice Note 18, sub-paragraph 19(g), the tendency notice should have been served no later than 22 February 2024. 2. On the application, Mr Crown accepted that, with reference to the date of the readiness hearing, there was no evidence before the Court to explain the delay in service of a tendency notice.