New South Wales District Court CITATION: R v BX [2010] NSWDC 312 JUDGMENT DATE: 22 November 2010 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: I propose to admit as context evidence contained in [24] and [25] of exhibit VDA. I do not propose to admit the evidence contained in [23] CATCHWORDS: CRIMINAL LAW - jury trial - application to lead evidence of acts other than those charged CASES CITED: R v RG [2010] NSWCCA 173 PARTIES: Regina BX FILE NUMBER(S): 2009/235564 COUNSEL: Mr Fox for ODPP Mr Timmins for the accused JUDGMENT 1. The Crown Prosecutor wishes to lead evidence of occasions when the complainant alleges that the accused sexually assaulted her other than the occasions which are charged in the indictment. Those occasions he has pointed out are contained in a statement from the complainant dated 17 March 2008. 2. The passages the Crown wishes to lead I have highlighted in orange. Mr Timmins of counsel objects to them being lead. The basis of Mr Timmins' objection is that the evidence will lead to the jury getting an overwhelming prejudicial impression of his client being a "dirty old man" and that the prosecution has selected a few instances in general conduct. It would be difficult to remedy this by directions. It may be challenging for a jury to understand the difference. 3. I have been referred to the judgment in the Court of Criminal Appeal in R v RG [2010] NSWCCA 173 and have read the relevant passages in that. 4. I propose to uphold the Crown Prosecutor, Mr Fox's, submission so far as some of the passages are concerned. I regard the evidence contained in paragraph 24 and 25 as relevant and as important to the prosecution case. 5. The evidence in paragraph 24 would tend to explain why there was no complaint. The evidence in paragraph 25 would also tend to explain why there was no complaint and would also explain how the complainant knew what to do when directed to by the accused on her account at a later stage. 6. Juries are taken to - by the law - to understand the directions which a judge gives about the difficulty or differences. The Crown Prosecutor has made it clear that the evidence is lead not as tendency but as context or relationship evidence. 7. However, the proposed evidence in paragraph 15 referring to "I do not remember every act because there are so many" and the contents of paragraph 23 I do not propose to admit. I regard their prejudicial impact as outweighing any probative value. 8. Accordingly, I propose to admit as context evidence the contents of paragraphs 24 and 25 of exhibit VDA. CROWN PROSECUTOR: Your Honour just one matter. In relation to the issue of context evidence I can't recall your Honour making any direction in respect of paragraph 22 of the statement of March 08. That's the paragraph that refers to the child as she then was hearing the toilet flush, the regular occurrence of the toilet flush, she would know that he would come into the room and then he would come into the room. HIS HONOUR: Sorry, I must have overlooked that. CROWN PROSECUTOR: The Crown would submit that would fall into the category of evidence that is contextual, fit it in with paragraphs 24 and 25. 9. No, I would reject that for reasons that I gave in respect of the others. The ones that I admitted had either relevance to why she may not have complained - "don't tell anybody about this" - or her knowledge of what she had to do on a future occasion. ********** 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.